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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.1357-1358 of 2011

Madhu @ Madhuranatha & Anr.             …Appellants

Versus

State of Karnataka              …Respondent

With

Criminal Appeal No.109 of 2013

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. These  criminal  appeals  have  been  preferred  against  the  

impugned judgment  and order  dated 8.9.2010,  passed  by the  High  

Court  of  Karnataka at Bangalore in Criminal  Appeal  Nos.833, 855

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and 864 of  2008 by which the High Court  has  affirmed the death  

sentence  and  confirmed  the  judgment  and  orders  of  the  learned  

District  &  Sessions  Judge  dated  11/17.7.2008,  passed  in  Sessions  

Case  No.152  of  2005  with  certain  observation  about  the  charging  

Sections  of  the Indian Penal  Code 1860 (hereinafter  referred to  as  

‘IPC’) by which and whereunder the appellants have been convicted  

under Sections 364/302/201 r/w Section 34 IPC and for the offences  

punishable  under  Section  364  r/w  Section  34  IPC,  sentenced  to  

undergo RI for 7 years and a fine of Rs.25,000/- each and in default of  

payment of fine to undergo a further imprisonment for a period of 18  

months.   They have been further  convicted under  Section 201 r/w  

Section 34 IPC and sentenced to undergo RI for 5 years and a fine of  

Rs.10,000/- each and in default to undergo further RI for a period of  

12 months.  All the three appellants have been further convicted under  

Section 302 r/w Section 34 IPC and awarded death penalty.

2. Facts and  circumstances giving rise to these appeals are that:

A. Madhusudhan, deceased had gone from Anandpura to Sagar on  

being asked by his uncle Prahlad (PW.1) to collect the outstanding  

dues in respect  of sale and purchase of  ginger from K.B. Sreenath  

(PW.2) and K.S. Kiran (PW.12).   As Madhusudhan did not turn up,  

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Prahlad (PW.1) got worried and contacted K.B. Sreenath (PW.2) and  

K.S.  Kiran (PW.12)  to  find out  the  whereabouts  of  Madhusudhan.  

Both K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) informed Prahlad  

(PW.1)  that  Madhusudhan  had  collected  Rs.2,50,000/-  and  

Rs.1,50,000/- respectively from them at about 12.30 P.M. and left  for  

Anandpura.  Prahlad (PW.1) contacted all his relatives and friends to  

find out the whereabouts of  Madhusudhan but all in vain.   

B. K.B.  Sreenath  (PW.2)  and  K.S.  Kiran  (PW.12)  filed  a  

complaint FIR No. 148/2005 (Ex.P-84) in the Police Station, Sagar  

against  unnamed  persons  suspecting  that  Madhusudhan  had  been  

kidnapped. In the meanwhile there were rumors in Anandpura that the  

appellants  had looted the money and killed Madhusudhan as some  

persons i.e.  Nagesh (PW.4); Sirajuddin (PW.5); Nagendra  (PW.3);  

and Chandrashekar (PW.6) had come  forward and informed that they  

had seen Madhusudhan,  deceased in the company of appellants  on  

8.8.2005 at 12.45 P.M.   

C. In view of this,  an FIR was lodged on 11.8.2005 against the  

appellants and one Lakshmeesha under Section 365 r/w Section 34  

IPC  at  Police  Station  Anandpura.   The  Police  tried  to  trace  

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Madhusudhan as well as the appellants.  It came to the knowledge of  

the investigating agency that the deceased was seen in the company of  

the appellants in a Maruti van bearing Registration No.KA-15-3112  

on which “Kadala Muttu” had been written on the back side.  Thus,  

the Investigating Officer tried to search for the said vehicle and came  

to know  that it belonged to  Jayanna @ P. Aya (A.3).     

D. The location of mobile phone of Jayanna @ P. Aya (A.3) was  

put on surveillance/watch and thereby he was arrested on 12.8.2005 at  

Anandpura and on the same day Rafiq @ Munna (A.2) was arrested  

by a separate team of police at Bangalore from the house of Felix  

D’Costa (PW.10).  Madhuranatha (A.1) surrendered before the police  

on the same day.   They made certain voluntary statements,  on the  

basis whereof, recoveries were made.  Jayanna @ P. Aya (A.3) took  

the police and others persons (recovery witnesses) to the forest area  

and pointed out to a place wherefrom the dead body was exhumated.  

Only the trunk of the body was found as the head had been chopped  

off and thrown in the nearby Nandi river.  Prahlad (PW.1), Srinivasa  

(PW.15),  Shivananda  (PW.16),  Devaraja  (PW.17)  and  K.  

Keshavamurthy (PW.22) witnessed the said recovery and identified  

the corpse.  However, in spite of the efforts made by the police, the  

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head could not be recovered.  Immediately thereafter recovery of most  

of the looted amount had been made from the appellants.  A mobile  

phone belonging to Jayanna @ P. Aya (A.3) purchased from the loot  

amount was also recovered.  A gold ring belonging to the deceased  

was given to the Investigating Officer by Felix D’Costa (PW.10) from  

whose house Rafiq (A.2) had been arrested in Bangalore.

E. After  completing  the  investigation,  chargesheet  was  filed  

against the  appellants and trial commenced.         

F. In  the  court  Nagesh  (PW.4)  and  Chandrashekar  (PW.6)  

corroborated the prosecution case to the extent that they had seen the  

deceased in the company of all  the three appellants on 8.8.2005 at  

about  12.45  P.M.    Pranesh  (PW.11)  and  Sadananda  (PW.13)  

supported  the  case  of  extra-judicial  confession  as  made  by  

Madhuranatha  (A.1)  before  (PW.11).   A.1  had  also  approached  

PW.13  for  help  to  contact  the  police  and  disclosed  that  he  had  

committed the murder of Madhusudhan alongwith  Rafiq (A.2) and  

Jayanna @ P. Aya (A.3).

G. Recovery  of  the  dead  body  was  supported  by  Shivananda  

(PW.16)  and  Devaraja  (PW.17).   K.B.  Sreenath  (PW.2)  and  K.S.  

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Kiran (PW.12)  had supported  the  prosecution  case  deposing  about  

payment of money to Madhusudhan on 8.8.2005 at about 12.45 P.M.  

to  the tune  of  Rs.4,00,000/-.   The  issue  of  motive  was proved by  

Prahlad  (PW.1),  K.B.  Sreenath  (PW.2),  Felix  D’Costa  (PW.10),  

Pranesh (PW.11), K.S. Kiran (PW.12) and Sadananda (PW.13).  The  

dead body was identified and the evidence in respect of recovery of  

the dead body was given by PWs.1 and 22.  The same stood affirmed  

by the report of the DNA test.  The Investigating Officer Bhaskar Rai  

(PW.47) proved all the recoveries and furnished the details as to how  

the investigation was carried out and how the arrest of the appellants  

was made.  

H. On  the  basis  of  the  above,  the  Trial  Court  convicted  and  

sentenced  the  appellants  under  Sections  364,  302,  201  read  with  

Section 34 IPC.  No conviction was made under Sections 120A or  B  

IPC.   

I. Aggrieved,  the  appellants  preferred  appeals  before  the  High  

Court  which  have  been  dismissed  by  the  impugned  judgment  and  

order  with  respect  to  death  sentences  while  maintaining  the  other  

sentences as well. However, the court made a passing observation that  

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the charge should have been framed under Section 364A  IPC instead  

of Section 302 IPC.     

Hence, these appeal.

3. Mr.  N.D.B.  Raju  and  Mr.  Amit  Kumar,  learned  counsel  

appearing for the appellants have agitated all  the issues which had  

been raised on behalf of the appellants before the Trial Court as well  

as  before  the  High Court  and  have  taken us  through the  evidence  

recorded before the Trial Court.  According to them there is nothing  

on record to show that the death of the deceased was homicidal or he  

was even abducted by the appellants, what to talk of causing death of  

deceased Madhusudhan.  In the absence of any material on record to  

prove that his head was chopped off by any of the appellants, their  

conviction  is  bad,  particularly  in  view of  the  fact  that  there  is  no  

evidence to show that the appellants had buried the lower portion of  

the corpse in the forest and threw the head in the flowing river.  More  

so,  the  High  Court  had  taken  a  view  that  the  conviction  under  

particular  provisions  of  IPC  by  the  Trial  Court  was  not  justified,  

meaning  thereby  that  the  Trial  Court  did  not  frame  the  charges  

properly.  Even the money shown to have been recovered from the  

appellants had been planted and not actually recovered.  Most of the  

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witnesses examined by the prosecution are relatives of the deceased.  

There are material contradictions in the deposition of the witnesses  

and a large number of witnesses to some of the recoveries have been  

withheld.   Only the police personnel have been made the recovery  

witnesses  though  large  number  of  persons  had  gathered  and  were  

available for being made the recovery witnesses.  The video prepared  

at the time of exhumation of the dead body was not presented in the  

Trial Court and that Jayanna (A.3) on whose behest it is alleged that  

the dead body was recovered is not shown in the photographs taken at  

the time of exhumation. One of the alleged witnesses of recovery i.e.  

Pranesh (PW.11) had been dis-believed by the Trial Court and another  

witness  i.e.  Sadananda (PW.13)  has been dis-believed by the High  

Court. They are the witnesses of extra-judicial confession as well. In  

such  a  fact-situation,  none  of  the  said  witnesses  are  trustworthy.  

Under no circumstance the appellants could have been awarded the  

death sentence.  Thus, the appeals deserve to be allowed.

4. On the contrary, learned counsel  appearing for the State had  

opposed the appeals contending that the Investigating Officer was not  

asked  in  cross-examination  any  of  the  question  raised  before  this  

Court for the first time, either in respect of the videography prepared  

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at the time of exhumation or about the absence of Jayanna (A.3) in the  

photographs taken at that time.  Law does not prohibit  making the  

police personnel as recovery witnesses and most of the discrepancies  

raised by the appellants are of trivial nature which do not materially  

affect the merit of the case.  Thus, in view of the above, the appeals  

are liable to be dismissed.

5. We are of the considered opinion that  both the courts below  

have taken into consideration the evidence and appreciated the same  

meticulously.  The  prosecution  has  relied  on  the  following  

circumstances to prove its case:

I. The motive of the offence was robbery and in pursuance  

to  which  the  accused  persons  murdered  the  deceased,  

robbed him, chopped off the head and buried the trunk of  

the  body.  The  head  and  the  weapon  of  offence  were  

thrown in Nandi River.

II. PW-11  deposed  about  the  motive  and  produced  cash  

amounting to Rs. 39000/- and a mobile phone along with  

its  SIM purchased  from the  total  cash  of  Rs.  50000/-  

deposited by A-1 with him.

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III. A-1  made  an  extra-judicial  confession  before  PW-13,  

requesting  PW-13  to  save  him  and  on  his  advice,  

surrendered before the police.

IV. Voluntary  disclosure  by A-3 about  the  location  of  the  

dead body and wherefrom, the dead body was exhumed.

V. PW-1  identified  the  trunk  of  the  dead  body  from  the  

tattoo. The D.N.A. report confirmed the body to be that  

of the deceased/son of PW-22.

VI. The Post Mortem Report and the manner in which the  

body was found irrefutably point to a homicidal death.

VII. A-2  was  arrested  from  the  house  of  PW-10  who  had  

produced two worthless articles and a gold chain-MO5  

before the police left  by A-2.  PW-1 had identified the  

said gold chain to be that of the deceased.

VIII. Recovery of Rs.  1,01,000/- from the house of A-1 and  

Rs.  2,02,700/- from the house of A-2 concealed in the  

cattle shed which is un-explained and un-accounted.

IX. Recovery of a mobile set MO14 from A-3 identified by  

PW-1 as that of the deceased.

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X. Last  seen  circumstance  of  the  deceased  being  in  the  

company  of  the  accused  persons  on  8.8.2005  around  

12:30 PM as deposed by PW-4 who is acquainted with  

the deceased as well as the accused persons.      

6. This Court has dealt with the case of circumstantial evidence  

time and again. It has consistently been held that  a conviction can be  

based solely on circumstantial evidence. The prosecution's case must  

stand or fall on its own legs and cannot derive any strength from the  

weakness  of  the  defence  put  up  by the  accused.  However,  a  false  

defence may be called into aid only to lend assurance to the court  

where  various  links  in  the  chain  of  circumstantial  evidence  are  

complete  in  themselves.  The  circumstances  from  which  the  

conclusion of guilt  is  to be drawn should be fully established.  The  

facts so established should be consistent only with the hypothesis of  

the guilt of the accused, that is to say, they should not be explainable  

or point to any other hypothesis except that the accused is guilty. The  

circumstances  should be of  a  conclusive  nature and tendency.  The  

evidence produced by the prosecution should be of such a nature that  

it makes the conviction of the accused sustainable.   

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(Vide:  Sharad Birdhichand Sarda v. State of Maharashtra, AIR  

1984 SC 1622; State of Uttar Pradesh v. Satish, AIR 2005 SC 1000;  

and Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011  

SC 200).   

7. Both  the  courts  below  have  dismissed  the  aforesaid  

circumstances in light of the aforesaid legal propositions and reached  

to a conclusion that the appellants had committed the crime. We do  

not see any reason to interfere with such concurrent finding of fact.  

8. It has been canvassed on behalf of the appellants that there are  

discrepancies and contradictions in the depositions of witnesses like  

the timings when deceased was seen last with the appellants and the  

distances of places etc. do not tally. Thus, their evidence cannot be  

relied upon.   

9. In Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181,  

this Court considered the issue of discrepancies in the depositions. It  

is a settled legal proposition that while appreciating the evidence of a  

witness, minor discrepancies on trivial matters which do not affect the  

core of the case of the prosecution must not prompt the court to reject  

the evidence in its entirety. Therefore,  irrelevant details which do not  

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in any way corrode the credibility of a witness should be ignored. The  

court has to examine whether evidence read as a whole appears to  

have a ring of truth. Once that impression is formed, it is undoubtedly  

necessary for the court to scrutinize the evidence, more particularly  

keeping in view the deficiencies, drawbacks and infirmities pointed  

out in the evidence as a whole and evaluate them to find out whether it  

is against the general tenor of the evidence given by the witnesses and  

whether  the  earlier  evaluation  of  the  evidence  is  shaken,  so  as  to  

render it unworthy of belief. Thus, the court is not supposed to give  

undue  importance  to  omissions,  contradictions  and  discrepancies  

which do not go to the heart of the matter, and shake the basic version  

of the prosecution witness.  

A similar view has been re-iterated in  State of U.P. v. M.K.  

Anthony,  AIR 1985  SC 48;  State rep.  by  Inspector  of  Police  v.  

Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State  

of M.P., (2010) 8 SCC 191.

10. Learned counsel for the appellants has vehemently argued that  

in  some  of  the  recoveries,  though  a  large  number  of  people  were  

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absence.   Even  otherwise,  the  provision  stands  qualified  “unless  

otherwise directed by any rule prescribed by the State Government, or  

by  any  general  or  special  order  of  the  District  or  Sub-divisional  

Magistrate.”   The  object  of  the  inquest  proceeding  is  merely  to  

ascertain whether a person has died under unnatural circumstances or  

an unnatural death and if so, what is the cause of death.  More so, the  

inquest  report  is  not  a  piece  of  substantive  evidence  and  can  be  

utilised only for contradicting the witnesses to the inquest examined  

during the trial.  Neither the inquest report nor the post-mortem report  

can  be  termed  as  basic  or  substantive  evidence  and  thus,  any  

discrepancy occurring therein cannot be termed as fatal or suspicious  

circumstance which would warrant benefit of doubt to the accused.

(Vide: Pooda Narayan & Ors. v. State of A.P., AIR 1975 SC 1252;  

Rameshwar Dayal  & Ors.  v.  State of  U.P.,  AIR 1978 SC 1558;  

Kuldeep Singh v. State of Punjab, AIR 1992 SC 1944;  George &  

Ors. v. State of Kerala & Anr., AIR 1998 SC 1376; Suresh Rai &  

Ors. v. State of Bihar, AIR 2000 SC 2207; and Munshi Prasad &  

Ors. v. State of Bihar, AIR 2001 SC 3031).      

14. So far as the provisions of Section 176 Cr.P.C. are concerned,  

the said provisions are attracted when a person dies in police custody  

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and there is suspicion that death had been caused by the police itself.  

In other  eventualities also,  as  provided in Section 176 Cr.P.C.,  the  

Magistrate  may  hold  the  enquiry.   Even  if  the  submission  of  the  

appellants  is  considered to have some substance it  will  not  tilt  the  

balance in their favour.  It is a settled legal proposition that evidence  

collected  even  by  improper  or  illegal  means  is  admissible  if  it  is  

relevant and its genuineness stands proved.  However, the court may  

be cautious while scrutinizing such evidence.  In such a fact-situation,  

it  may be considered a case of procedural  lapse on the part of  the  

Investigating  Officer  and  it  should  not  be  discarded  unless  the  

appellant satisfies the court that any prejudice has been caused to him.  

(Vide: Umesh Kumar v. State of Andhra Pradesh, JT 2013 (12) SC  

213; and Pooran Mal v. Director of Inspection, Income-Tax, New  

Delhi & Ors., AIR 1974 SC 348).

15. A number of witnesses have deposed of seeing the deceased in  

the company of the appellants before the incident. In cases where the  

accused  was  last  seen with  the  deceased victim (last  seen-together  

theory) just before the incident, it becomes the duty of the accused to  

explain  the  circumstances  under  which  the  death  of  the  victim  

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“Even if the extra-judicial confession said to have  been  made  by  the  first  accused  before  PW.13  is  eschewed, the statement made before PW.11 shows that  immediately  after  the  incident  the  first  accused  Madhuranatha who had earlier sought the assistance of  PW.11  for  the  same  crime  has  met  him  in  his  house  during  night  and  handed  over  Rs.50,000/-  for  safe  custody and also requested him not to disclose it to any  one.”

If the aforesaid findings of the courts below are read together,  

none of them has disbelieved either of the witnesses. Therefore, we do  

not find any force in the submissions advanced by learned counsel for  

the appellants that one of the said witnesses had been disbelieved by  

the Trial Court and another by the High Court and thus, none of them  

could be relied upon. The courts below opined that even if evidence of  

one  of  them is  eschewed,  deposition  of  another  is  enough to  lend  

support to the prosecution case.   

18. However, the facts of the case did not warrant death penalty.  

The extreme penalty of death need not be inflicted except in  

gravest  cases  of  extreme  culpability.  Before  opting  for  the  death  

penalty the circumstances of the offender are also required to be taken  

into consideration along with the circumstances of the crime for the  

reason  that  life  imprisonment  is  the  rule  and death  sentence  is  an  

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exception. The penalty of death sentence may be warranted only in a  

case where the court comes to the conclusion that imposition of life  

imprisonment  is  totally  inadequate  having  regard  to  the  relevant  

circumstances  of  the  crime.  The  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 mitigating  

circumstances  before  the  option  is  exercised.  The  condition  of  

providing  special  reasons  for  awarding  death  penalty  is  not  to  be  

construed  linguistically  but  it  is  to  satisfy  the  basic  features  of  a  

reasoning  supporting  and  making  award  of  death  penalty  

unquestionable. The circumstances and the manner of committing the  

crime should be such that it pricks the judicial conscience of the court  

to  the  extent  that  the  only  and  inevitable  conclusion  should  be  

awarding of death penalty. (Vide: Bachan Singh v. State of Punjab,  

AIR 1980 SC 898;  Machhi Singh v. State of Punjab, AIR 1983 SC  

957;  Devender Pal Singh v. State of NCT of Delhi, AIR 2002 SC  

1661; State of Maharashtra v. Goraksha Ambaji Adsul, AIR 2011  

SC 2689; and  Neel Kumar v. State of Haryana, (2012) 5 SCC 766).

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19. In  Haresh  Mohandas  Rajput  v.  State  of  Maharashtra,  

(2011) 12 SCC 56, this court held as under:

“20. ‘The rarest of the rare case’ comes when a convict  would  be  a  menace  and  threat  to  the  harmonious  and  peaceful  coexistence of  the society.  The crime may be  heinous or brutal but may not be in the category of ‘the  rarest  of  the  rare  case’.  There  must  be  no  reason  to  believe  that  the  accused  cannot  be  reformed  or  rehabilitated  and that  he  is  likely  to  continue  criminal  acts of violence as would constitute a continuing threat to  the society. The accused may be a menace to the society  and would continue to be so, threatening its peaceful and  harmonious coexistence. The manner in which the crime  is committed must be such that it may result in intense  and extreme indignation of the community and shock the  collective conscience of the society. Where an accused  does not act on any spur-of-the-moment provocation and  indulges  himself  in  a  deliberately  planned  crime  and  meticulously executes it, the death sentence may be the  most  appropriate  punishment  for  such a  ghastly  crime.  The death sentence may be warranted where the victims  are innocent children and helpless women. Thus, in case  the  crime  is  committed  in  a  most  cruel  and  inhuman  manner  which  is  an  extremely  brutal,  grotesque,  diabolical, revolting and dastardly manner, where his act  affects  the entire  moral  fibre  of  the society  e.g.  crime  committed for power or political ambition or indulging in  organised  criminal  activities,  death  sentence  should  be  awarded.”

20. The facts and circumstances involved in the instant case do not  

meet the requirement of rarest of rare cases as explained hereinabove  

and we are of the considered view that it is not a fit case where the  

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death  sentence  awarded  to  the  appellants  should  be  affirmed.  

Considering the current trend in view of the judgment of this Court in  

Swamy Shraddanand (2) @ Murali  Manohar  Mishra  v.  State  of  

Karnataka, (2008)  13  SCC  767  which  has  subsequently  been  

followed by this Court as is evident from the judgments in  State of  

Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC 537; and  Gurvail  

Singh @ Gala v. State of Punjab, (2013) 2 SCC 713, we are of the  

considered  opinion  that  ends  of  justice  would  meet  if  they  are  

awarded the sentence of 30 years without remission.  

21. With the aforesaid modification, the appeals stand disposed of.  

.........................………………..J.                                                 (DR. B.S. CHAUHAN)

                                                        .............………………………J.                    (S.A. BOBDE)

New Delhi, November 28, 2013    

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