B.A.Umesh vs Regr.Gen.High Court Of Karnataka

questioning the judgment and order dated 4th 2

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 3

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 4

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, 5

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 6

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 7

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 8

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 9

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 10

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 11

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 12

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 13

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 14

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 15

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 16

[(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 17

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 18

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 19

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 20

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 21

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 22

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 23

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. 24

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. 25

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.

26

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 27

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. 28

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 29

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 30

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 31

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 32

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 33

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 34

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 35

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 36

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, 37

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 38

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 39

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, 40

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. 41

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 42

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 43

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."

44

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 45

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 46

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 47

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?"

48 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) 49

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 50

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 51

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 52

(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 53

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 54

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 55

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 56

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. 57

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 58

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), 59

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 60

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 61

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 62

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 63

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.

64

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 65

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. 66

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 67

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. 68

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