Irappa Siddappa Murgannavar vs The State Of Karnataka

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1473-1474 OF 2017

IRAPPA SIDDAPPA MURGANNAVAR ..... APPELLANT

VERSUS

STATE OF KARNATAKA ..... RESPONDENT

JUDGMENT

SANJIV KHANNA, J.

The judgment under challenge, passed by the High Court of

Karnataka at Dharwad on 6th March 2017, affirms the conviction of

the appellant – Irappa Siddappa Murgannavar – under Sections

302, 376, 364, 366A, and 201 of the Indian Penal Code, 1860 (for

short, ‘the Code’); and confirms the sentence of death for the

offence under Section 302, rigorous imprisonment for life for the

offence under Section 376, rigorous imprisonment for six years

and a fine of Rs.10,000/- with default stipulation for the offences

Signature Not Verified under Sections 364 and 366A each, and rigorous imprisonment Digitally signed by Neelam Gulati Date: 2021.11.09 11:39:29 IST Reason: for two years and a fine of Rs.2,000/- with default stipulation for

the offence under Section 201 of the Code. The sentences under

Criminal Appeal Nos. 1473-1474 of 2017 Page 1 of 30 Sections 376, 364, 366A, and 201 of the Code are directed to run

consecutively.

2. The case of the prosecution is that the appellant subjected the

deceased R to rape, killed her by strangulation, and then disposed

of her body, tied in a gunny bag, into the stream named

Bennihalla. As there are no eye witnesses to the commission of

the offences, in order to prove these postulations, the prosecution

has relied on three-fold circumstances: (i) that the appellant took

away R from a neighbour’s house on 28th December 2010; (ii) that

the appellant was last seen by certain witnesses carrying R and a

gunny bag towards the Bennihalla stream; and (iii) that based on

the disclosure statement of the appellant on 1st January 2011, the

dead body of R was recovered in a gunny bag from Bennihalla.

3. R, a girl aged 5 years and 2 months, was living with her maternal

grandfather Rangappa in village Khanapur, Taluka Nargund,

District Gadag, Karnataka while her parents worked in Mangalore,

Karanataka. Rangappa’s neighbours Venkavva Patil (PW-5) and

her nephew Ajit Patil (PW-6) have testified that on 28th December

2010 at about 6:30 pm, R had come to their house to watch TV. At

about 6:30 pm the appellant had also come to their house. He

was talking to R and took her with him on the pretext of buying her

biscuits. Hanamappa (PW-4), who is the brother of Rangappa, Criminal Appeal Nos. 1473-1474 of 2017 Page 2 of 30 testified that R did not return that night, and in spite of frantic

efforts, she could not be traced. The next day, he enquired at

Venkavva Patil’s (PW-5) house about R’s whereabouts, where he

was informed that the appellant had taken R with him.

Hanamappa (PW-4) lodged a missing person report re R at

Nargund Police Station on 29th December 2010 (Exhibit P-6). This

complaint states that on 28th December 2010, at 9 pm, he was

informed by Mallanagowda Kagadal (PW-14) that R was missing,

following which he went to his brother Rangappa’s house and

learnt from his brother’s daughter, Yallavva Mangalore (PW-23),

that R had gone to Venkavva Patil’s (PW-5) house at 6:30 pm to

watch TV, and that he, along with other people, tried locating R

but were unsuccessful. The complaint does not mention the

involvement of the appellant, a fact counted on by the counsel for

the appellant that will be addressed subsequently. Similarly,

Yallavva Mangalore (PW-23) has testified that R had gone to her

neighbour’s house at about 6:30 p.m. on 28th December 2010 to

watch TV. As R did not return home, they had made enquiries

with their neighbour Venkavva Patil (PW-5) who had confirmed

R’s visit to her house for watching TV and that she may have

gone out. Yallavva Mangalore (PW-23) had looked for R and, on

being unsuccessful, informed her father and uncles. R could not

be located on the said date or on 29th December 2010. Criminal Appeal Nos. 1473-1474 of 2017 Page 3 of 30

4. Upon learning from Hanamappa (PW-4) and Yallavva Mangalore

(PW-23) that R was missing, her father Sanganabasappa (PW-1)

and mother Shivaleela (PW-19) returned to Khanapur on 30th

December 2010. Thereupon, extensive search for R was

undertaken, but she could not be found. Sanganabasappa (PW-1)

has stated that he was told by Bhimappa Talawar (PW-8),

Hanamappa Talawar (PW-10) and others that they had seen the

appellant carrying his daughter somewhere. He had then made a

complaint at the Nargund Police Station on 1st January 2011 at

12:30 a.m. (Exhibit P-1), which we would subsequently refer to.

Hanamappa (PW-4) has similarly testified that he had learnt from

village residents Bhimappa Talawar (PW-8), Gadigeppa Talawar

(PW-9) and Hanamappa Talawar (P-10) that they had seen the

appellant carrying R on his shoulder and going towards the

Bennihalla stream. Thereafter, he went to the police station and

informed the police about the possible involvement of the

appellant. On similar lines, Venkavva Patil (PW-5) has deposed

that she learnt from the police that Yallappagouda Kagadal (PW-

7), Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) and

Hanamappa Talawar (P-10) had seen the appellant carrying a

gunny bag and the deceased R, walking towards the stream.

These evidences, further elaborated below, have been adduced

Criminal Appeal Nos. 1473-1474 of 2017 Page 4 of 30 by the prosecution to establish that the appellant was seen

carrying R and a gunny bag and walking towards the stream.

5. Yallappagouda Kagadal (PW-7), in his sworn statement, confirms

the prosecution version that on 28th December 2010 at about 8:30

p.m. while he was standing near his house, he saw the appellant

carrying a child (who was wearing a frock) and a gunny bag, going

through the bus stand road. He thought that the appellant was

taking the said girl to her house. Subsequently he had informed

others and learnt from Bhimappa Talawar (PW-8), Gadigeppa

Talawar (PW-9) and Hanamappa Talawar (PW-10) that they too

had seen the appellant carrying a girl child with him at about 8:30

p.m. on 28th December 2010. Bhimappa Talawar (PW-8),

Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10), in

their depositions, have corroborated that they had seen the

appellant carrying a girl on his shoulder and a gunny bag at 8:30

p.m. However, they have stated that the sighting was on 30th

December 2010. We shall examine this inconsistency and

variance of the date subsequently.

6. Ajit Patil (PW-6), in his testimony, has stated that they had

searched for the appellant but he had left the village. This had

also been a factor, along with others, contributing to the suspicion

Criminal Appeal Nos. 1473-1474 of 2017 Page 5 of 30 that the appellant had kidnapped R with an intention to rape and

kill her.

7. The investigating officer B. Vijaykumar (PW-24) has stated that he

had taken charge of the investigation from PSI S.S. Kamathagi

(PW-25) on 1st January 2011. He searched for the appellant and

subsequently arrested him on the same day in front of one

Goudappagouda Hanamantagouda Kagadal. The date and time of

arrest as shown in the chargesheet are 1st January 2011 at 4:30

am. B. Vijaykumar (PW-24) has testified that the appellant, upon

arrest, had made a disclosure statement (Exhibit P-17), wherein

he has stated, inter alia, that he inserted the body of R into a bag

with two stones, tied the mouth of the bag and threw it into the

waters of Bennihalla. Based on the disclosure statement, the

appellant was taken to Bennihalla near the field of one

Shrinivasreddi Ramanagouda Hosamani (PW-15) where he

showed the place where he had thrown the dead body of R. On

similar lines, Rajesab Nadaf (PW-11) and Shankrappa Tadasi

(PW-12), in almost identical testimonies, have deposed that the

appellant had shown the spot in Bennihalla where he had

submersed the body of R tied in a gunny bag along with two

stones. On directions of the police, they dived into the water and

discovered a gunny bag, which contained the dead body of R,

Criminal Appeal Nos. 1473-1474 of 2017 Page 6 of 30 along with two stones. The stones were identified by Rajesab

Nadaf (PW-11) and Shankarappa Tadasi (PW-12) and marked

MO.1 and MO.2 while the gunny bag was marked MO.3 and the

frock worn by R was marked as MO.4. The version asserted by

Rajesab Nadaf (PW-11) and Shankarappa Tadasi (PW-12) is

affirmed by the panch witnesses. It is also avowed by

Shrinivasreddi Ramanagouda Hosamani (PW-15) that the police

had asked two persons to enter the water, who found a sack near

the pipe connected to his pump set. The sack was opened to find

the dead body of R along with two stones. The prosecution has

laid reliance on these depositions to evidence that the dead body

of R was recovered from the stream based on the disclosure

statement made by the appellant.

8. Having noted the witness statements and evidence relied upon by

the prosecution to prove the circumstances of commission of the

offences, we would examine the implication of the discrepancies

in the statements of witnesses and the prosecution case, which

the counsel for the appellant submits, establish that the

prosecution has failed to prove the case against the appellant

beyond reasonable doubt.

9. The first discrepancy alleged is predicated on the testimony of

Hanamappa (PW-4) and Yallava Mangalore (PW-23) vis-à-vis the Criminal Appeal Nos. 1473-1474 of 2017 Page 7 of 30 testimony of Venkavva Patil (PW-5) and Ajit Patil (PW-6)

regarding the presence of the appellant in the house of Venkavva

Patil (PW-5) on 28th December 2010 at 6:30 p.m. Counsel for the

appellant submits that the assertion that appellant took R with him

on the pretext of getting her biscuits is an afterthought and

contrived evidence. In this regard, he places reliance upon Exhibit

P-6, i.e. the complaint filed by Hanamappa (PW-4) on 29th

December 2010 at 5:00 p.m., which makes no mention of the

presence of the appellant at the residence of Venkavva Patil (PW-

5) and Ajit Patil (PW-6) or that he had taken R with him, in spite of

averments in witness statements that the factum of the appellant

taking R with him had been communicated to Hanamappa (PW-4)

before filing of the complaint. Reliance is also placed on the

testimony of PSI S.S. Kamathagi (PW-25) who claims that he had

visited the village after recording the complaint (Exhibit P-6) and

made efforts without success to trace R. Our attention was drawn

to the FIR (Exhibit P-22) recorded on the basis of statement made

by Sanganabasappa (PW-1) in the intervening night of 31st

December 2010 and 1st January 2011. The FIR mentions that

Venkavva Patil (PW-5) and Ajit Patil (PW-6) had informed

Sanganabasappa (PW-1) that the appellant had taken R with him,

and that Sanganabasappa (PW-1) came to know of this fact only

on 30th December 2010. The counsel for the appellant has argued Criminal Appeal Nos. 1473-1474 of 2017 Page 8 of 30 that Venkavva Patil (PW-5) and Ajit Patil (PW-6) did not name the

appellant though R was missing from 6:30 p.m. onwards on 28th

December 2010, and the first mention of the appellant’s

involvement surfaces only in the FIR dated 1st January 2011.

Therefore, the evidence of ‘last seen’ propounded and based on

depositions by Venkavva Patil (PW-5) and Ajit Patil (PW-6) is

shaky and doubtful.

10. Khanapur is a small village, secluded and away from urban areas

or other habitations, which is apparent from the fact that the

closest police station is located about nineteen kilometres away.

Hanamappa (PW-4) who had made the police complaint (Exhibit

P-6) on 29th December 2010, and his neighbours Venkavva Patil

(PW-5) and Ajit Patil (PW-6) are village dwellers and simple

people. Village communities are close-knit, and given the

camaraderie, faith and trust amongst the known villagers,

Hanamappa (PW-4), Venkavva Patil (PW-5) and Ajit Patil (PW-6)

may not have initially suspected the appellant’s foul play in

disappearance of R. The complaint (Exhibit P-6) is short and brief;

while mentioning that R was missing, it does not record that she

may have been raped and killed by someone. This is also evident

from Hanamappa’s (PW-4) cross-examination wherein he has

stated that at the time of filing of the complaint, he did not know

Criminal Appeal Nos. 1473-1474 of 2017 Page 9 of 30 whether the appellant had committed an offence. Noticeably, the

implication as to the involvement of the appellant was made

shortly thereafter, that is on 31st December 2010. By then the

entire village was in a state of alarm and wary that a terrible crime

had been committed by someone from the village. Yallappagouda

Kagadal (PW-7), Bhimappa Talawar (PW-8), Gadigeppa Talawar

(PW-9), and Hanamappa Talawar (PW-10) had come forward and

stated that they saw the appellant carry a child towards

Bennihalla. The appellant, a driver by profession, had gone

missing according to Ajit Patil’s (PW-6) testimony. Therefore,

mere non-inclination to straight-away accuse the appellant who

was apparently close to Venkavva Patil (PW-5) and Ajit Patil (PW-

6) and had come to their house to watch television, should not be

a ground to thrust aside Hanamappa’s (PW-4) version as he had

not named the appellant, or depositions of Venkavva Patil (PW-5)

and Ajit Patil (PW-6) that R had left with the appellant. One could

accept that there could be some exaggeration in the statements of

Venkavva Patil (PW-5) and Ajit Patil (PW-6) to the extent that they

had heard the appellant conversing with R and that he had taken

her away on the pretext of giving her a biscuit, but this would not

in any manner affect the factum that the appellant and the victim

R were present in the house of Venkavva Patil (PW-5) and Ajit

Patil (PW-6) at 6:30 p.m. on 28th December 2010 where they had Criminal Appeal Nos. 1473-1474 of 2017 Page 10 of 30 gone to watch TV. It would be rather imprudent to hold that the

appellant had not visited the house of Venkavva Patil (PW-5) and

Ajit Patil (PW-6) on 28th December 2010 at 6.30 p.m., when R was

also present, and that the appellant had left taking R with him.

11. It would be apposite to pay minute attention to the testimonies of

Yallappagouda Kagadal (PW-7), Bhimappa Talawar (PW-8),

Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10).

These villagers again had no reason to suspect that the appellant,

who was carrying a child on his shoulder, was guilty of a criminal

act of rape and murder or that he was carrying a gunny bag on his

shoulder for the purpose of dumping the victim’s body in the

stream. This is understandable from the statement of

Yallappagouda Kagadal (PW-7) according to which he assumed

that the appellant was taking the girl to her home. The situation

changed rapidly thereafter, as is duly reflected in the statement

made by Sanganabasappa (PW-1) on the intervening night of 31st

December 2010 and 1st January 2011 wherein he has cast

suspicion on the appellant. The statement reflects the anger of

people in a rural environment as faith had given way to disbelief.

By that time, villagers had not been able to locate R who was last

seen with the appellant, who in turn had been spotted carrying a

child and a gunny bag, and therefore, they suspected that R had

Criminal Appeal Nos. 1473-1474 of 2017 Page 11 of 30 been raped and killed. There appeared no other reason for R to

have vanished and disappeared, she being a girl aged only about

five years who had gone to a neighbour’s house to watch TV in

the evening. The statement of PSI S.S. Kamathagi (PW-25) has

not in any way contradicted the prosecution version or the

testimonies of Sanganabasappa (PW-1), Hanamappa (PW-4),

Venkavva Patil (PW-5), Ajit Patil (PW-6), Yallappagouda Kagadal

(PW-7), Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9),

Hanamappa Talawar (PW-10), and Yallava Mangalore (PW-23).

12. We would now examine the date discrepancy in the court

testimonies of Yallapagouda Kagadal (PW-7), Bhimappa Talawar

(PW-8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar

(PW-10), and consider the contention of the counsel for the

appellant that Yallapagouda Kagadal (PW-7), Bhimappa Talawar

(PW-8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar

(PW-10) are planted witnesses. Yallappagouda Kagadal (PW-7) in

his testimony has clearly stated that he had seen the appellant

carrying a girl on his shoulder at about 8:30 p.m. on 28th

December 2010. Contrary to Yallapagouda’s (PW-7) statement

relating to the date of sighting, Bhimappa Talawar (PW-8),

Gadigeppa Talawar (PW-9), and Hanamappa Talawar (PW-10),

have deposed that they had seen the appellant with a gunny bag

Criminal Appeal Nos. 1473-1474 of 2017 Page 12 of 30 and a girl child on his shoulder on 30th December 2010 at about

8:30 p.m. This date – 30th December 2010 – has been repeatedly

mentioned by Bhimappa Talawar (PW-8) and Hanamappa

Talawar (PW-10) and once by Gadigeppa Talawar (PW-9). The

counsel for the appellant has harped on the inconsistency of these

dates. On the other hand, the State has contended that this

contradiction should have been put to the witnesses in question in

their cross-examination by the defence. We would have to reject

the contention raised by the State as untenable and fallacious. It

is an accepted position that the defence is entitled to rely upon

contradictions in ocular evidence furnished by the eye-witnesses

and highlight any incongruity between their versions and the

prosecution’s case. It is not a universally affirmed position that the

witnesses must be confronted by the defence to seek advantage

of the contradictions.

13. On the aspect that Yallapagouda Kagadal (PW-7), Bhimappa

Talawar (PW-8), Gadigeppa Talawar (PW-9) and Hanamappa

Talawar (PW-10) are planted witnesses, at first we take note of

the site map (Exhibit P-8) which indicates the place/location where

Yallappagouda Kagadal (PW-7) resides and also the pathway

from the village to the stream, which is about a kilometre long.

Shrinivasreddi Ramanagouda Hosamani (PW-15) has deposed

Criminal Appeal Nos. 1473-1474 of 2017 Page 13 of 30 that there being waste shrubs next to his field on the banks of

Bennihalla, it was difficult to go to the stream through the shrubs.

Next to his land, lie the fields belonging to others, beyond which

there was a graveyard where people did not usually visit at odd

hours.

14. Secondly, we see good and sound reasons to believe that the

date 30th December 2010 deposed to by Bhimappa Talawar (PW-

8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10)

is on account of failure to recollect the exact date when they had

seen the appellant with a gunny bag and the girl on his shoulder,

and not on account of false deposition on the factum that the

appellant was seen carrying the child at about 8:30 p.m. The

witnesses are village residents and as their evidence was

recorded nearly a year after the occurrence, they may not have

possibly remembered the date of sighting, for the reason that

dates, especially those in the Gregorian calendar, may not be of

much relevance or consequence in the rural areas.

15. Furthermore, what has weighed with us is the undisputed fact that

on 29th December 2010, Hanamappa (PW-4) had filed a missing

person report (Exhibit P-6) at about 5:00 p.m. On 30th December

2010, the parents of R, Sanganabasappa (PW-1) and Shivaleela

(PW-19) had also reached the village. In case Bhimappa Talawar Criminal Appeal Nos. 1473-1474 of 2017 Page 14 of 30 (PW-8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar

(PW-10) had seen the appellant carrying the girl child on his

shoulder on 30th December 2010, they would have immediately

accosted him and questioned him about the girl, for by then the

disappearance of R had become common knowledge for all

villagers. Therefore, the date on which Bhimappa Talawar (PW-8),

Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10)

saw the appellant with the small girl on his shoulder was not 30th

December 2010. Rather, 30th December 2010 was the date on

which these witnesses had informed other villagers that they had

seen the appellant carrying a small girl on his shoulder about two

days earlier. On a careful scrutiny of the statements made by

Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) and

Hanamappa Talawar (PW-10), it becomes apparent that they had

met Sanganabasappa (PW-1) on 30th December 2010 and

informed him about their sighting. The inconsistency of dates,

thus, can be explained as inadvertence or strained memory due to

passage of time, not resulting in displacing the case against the

appellant that the prosecution has made out.

16. On the question of recovery of the dead body on the basis of the

appellant’s disclosure statement, we have referred to the

statements of Gadigeppa Talawar (PW-9), Hanamappa Talawar

Criminal Appeal Nos. 1473-1474 of 2017 Page 15 of 30 (PW-10), Rajesab Nadaf (PW-11), Shankarappa Tadasi (PW-12),

Shrinivasreddi Ramanagouda Hosamani (PW-15) and B.

Vijaykumar (PW-24). There is no room left for doubt that recovery

of the dead body of R was based on the appellant’s statement.

The dead body was concealed in a gunny bag with two stones

and immersed in the stream which had about midriff-high water.

The fact that Gadigeppa Talawar (PW-9) and Hanamappa

Talawar (PW-10) had deposed on almost identical lines does not,

in any way, reflect a discrepancy, but rather a possible lapse on

the part of the court recording their evidence. In Shanti Devi v.

State of Rajasthan,1 this Court had considered the factum of

recovery of the body of the deceased at the instance of the

accused as a strong circumstance for conviction of the accused. Similarly, in Ranjit Kumar Haldar v. State of Sikkim,2 recovery of

dead body based on the disclosure statement of the accused was

considered a very strong incriminating circumstance against her to

maintain her conviction.

17. This brings us to the medical evidence and the question whether it

supports the prosecution version that R was raped and murdered

on 28th December 2010. Dr. Girish Maraddi (PW-20) had

conducted the post mortem examination of R on 1st January 2011 1 (2012) 12 SCC 158, at para 17.

2 (2019) 7 SCC 684 Criminal Appeal Nos. 1473-1474 of 2017 Page 16 of 30 at 10:00 a.m. His report is detailed and refers to cut lacerated

wound over the vagina, anteriorly upto urethra, and the ruptured

hymen. There was also soft tissue injury of the neck interiorly.

18. The report also states that the cause of death was asphyxia

caused by strangulation and not due to drowning. To confirm the

said position, PW-20 had conducted the lung floating test. The

post mortem report states that the body was slightly decomposed

and the skin had also peeled all over the body. Small and large

intestines, as well as the lungs, were congested. The inquest

panchnama (Exhibit P-2) records that the face seemed swollen

and the skin on the body seemed to be torn here and there. It had

also become black at some places. The body had swollen from

neck to waist, and at some places the skin was torn and had

turned black in colour. Similarly, legs had swollen and the skin

had torn, turning black. The post mortem report (Exhibit P-11)

records the time of death as 72-86 hours before the examination.

This would corroborate with the prosecution version that R was

raped and murdered on 28th December 2010.

19. To affirm our opinion as to the time of death we have studied the

opinion expressed in Modi’s Textbook of Medical Jurisprudence

and Toxicology, 25th edition (2016), Chapter XV – ‘Post Mortem

Changes and Time of Death’. At page 352, the treatise observes Criminal Appeal Nos. 1473-1474 of 2017 Page 17 of 30 that the rate of putrefaction of body in water is more reliable than

of body exposed to air as the temperature in water is more

uniform and the body is protected from air. Ordinarily, the body

takes twice as much time in water as in air to undergo the same

degree of putrefaction. The process is retarded, when a body is

lying in deep water and is well-protected by clothing. However, it

is hastened when the body is lying in water contaminated with

sewage. Flotation of body takes place when gases of

decomposition or putrefaction develop within the submerged

body. In India, submerged body comes to the surface within 24

hours in summer and within two to three days or more, and

sometimes in more than a week, in winter. In temperate climates a

submerged body floats within a week in summer and in about a

fortnight in winter. Power of flotation of a decomposed body is so

great that in certain cases it may float to the surface in spite of

being weighted with a heavy stone. The duration required for

flotation of body depends upon the age, sex, the condition of the

body, season of the year and water. Bodies which are light in

weight have low specific gravity and, therefore, float sooner.

20. In the context of the present case, there is no dispute that the

occurrence had taken place in late December, that is, in winter.

We have undertaken a check to ascertain the temperature range

Criminal Appeal Nos. 1473-1474 of 2017 Page 18 of 30 in the village in late December. As per data, the temperature in

the month of late December in Nargund (the taluka in which

Khanapur village is located) is between 19 to 29 degrees, and the

temperature in water would be certainly lower. Thus, it is clear that

putrefaction of the body was retarded. But the body had not

floated and risen to the surface. The fact that the body was

swollen and was slightly decomposed, while the skin was

discoloured, would indicate that the putrefaction process had

indeed started. The post mortem report and the inquest

panchnama, therefore, confirm the date when the crime was

committed and fully corroborate and support the ocular evidence

of Sanganabasappa (PW-1), Hanamappa (PW-4), Venkavva Patil

(PW-5), Ajit Patil (PW-6), Yallapagouda Kagadal (PW-7),

Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9),

Hanamappa Talawar (PW-10), Rajesab Nadaf (PW-11),

Shankarappa Tadasi (PW-12), Shrinivasreddi Ramanagouda

Hosamani (PW-15) and B. Vijaykumar (PW-24).

21. On an overall view of the evidence and witness statements

adduced by the prosecution, the chain of circumstances

affirmatively establishes the guilt of the appellant. Though the

counsel for the appellant has painstakingly sought to highlight

contradictions and inconsistencies in the prosecution’s case, we

Criminal Appeal Nos. 1473-1474 of 2017 Page 19 of 30 believe that the same do not create a reasonable doubt in the

mind of this Court. The five-fold test prescribed by Fazal Ali J. in

Sharad Birdhichand Sarda v. State of Maharashtra3 are

satisfied as the circumstances relied upon are fully established;

they are conclusive in nature and tendency; the chain of evidence

is so complete as not to leave any reasonable ground for

conclusion consistent with the innocence of the appellant; the

facts established are consistent only with the hypothesis of the

guilt of the accused and exclude every hypothesis except the one

proved. The decision of the High Court as well as the District and

Sessions Court convicting the appellant for rape and murder of R

etc., thus, is upheld.

22. Having established the culpability of the accused, we shall

proceed to examine the issue of sentencing. As noted previously,

the appellant has been sentenced to death for the offence under

Section 302, which sentence has been confirmed by the High

Court, along with prison sentences as set out in paragraph 1 of

this judgment.

23. The impugned judgment reveals extensive study of case-law on

part of the High Court in considering the death sentence imposed

by the trial court. On an overall view of the facts and 3 (1984) 4 SCC 116 Criminal Appeal Nos. 1473-1474 of 2017 Page 20 of 30 circumstances of the matter, the High Court was of the opinion

that the sentence of death should be confirmed, that there were

no mitigating circumstances to be found, and that there were

many aggravating circumstances as the appellant was known to

R, who reposed complete trust and faith in him and willingly

allowed him to take her along, but she was raped and murdered in

the most gruesome manner and her body was dumped into the

stream. The court observed that “…when an innocent and

helpless girl of 5 was subject to such a barbaric treatment by a

person who was in a position of her trust, his culpability assumes

the proportion of extreme depravity and arouses a sense of

revulsion in the mind of an ordinary person.” The motivation of the

appellant, the vulnerability of the deceased R, the enormity of the

crime and the execution thereof, the Court considered the case as

falling in the “rarest of the rare” category, and warranting the

sentence of death to deter others from committing atrocious

crimes, and to give emphatic expression to society’s abhorrence

of such crimes.

24. Challenging the order on sentence, the appellant has argued that

by passing a common order on conviction and sentencing, the

High Court has contravened Section 235(2) of the Code of

Criminal Procedure, 1973 (for short, ‘CrPC’) by not hearing the

Criminal Appeal Nos. 1473-1474 of 2017 Page 21 of 30 petitioner separately on sentencing. He has also submitted that

the High Court failed to call for mitigating circumstances, that

there were no aggravating circumstances, that the case does not

fall into the category of ‘rarest of the rare’, that the appellant was

only 25 years old who could be reformed and rehabilitated and is

not likely to be a menace to the society, that the appellant has

undergone a lengthy period in custody, that there is no material to

suggest that the option of awarding life sentence was

unquestionably foreclosed, and that death sentence should

ordinarily be awarded when there is no other alternative left. In

addition to the aforesaid, counsel for the appellant has also listed

mitigating factors for commutation of death sentence to life

imprisonment as under:

“1) The murder was not committed in pre-planned manner. Though rape on a child of 5 years is itself a grave crime, the manner of the committing the crime cannot be said to be gruesome or diabolical.

2) There is no material led by the prosecution to show that the accused cannot be reformed. The State has not brought material to show that the accused is a continuing threat to society and the option of imposing life sentence is unquestionably foreclosed.

3) Young age of the accused is a mitigating factor.

4) Lack of criminal antecedent is a mitigating factor.

5) Conduct in jail has to be considered.

6) Social economic back ground has not been considered, including poverty and lack of education.

Criminal Appeal Nos. 1473-1474 of 2017 Page 22 of 30 7) Perhaps the accused, being unaware of his right to lead evidence of mitigating circumstances, did not request for time for producing material on this aspect.

Though it would not vitiate the sentence, there is sufficient material before this Hon’ble Court for making a further inquiry into the mitigating circumstances.

8) The accused is in death row for last 9 years since the judgment of trial court on 08.03.2012.”

The counsel for the appellant has drawn our attention to a

certificate issued by the Gandhi Research Foundation, Jalgaon

which states that the appellant had participated in the ‘Gandhi

Vichar Sanskar Pariksha’ 2017-18 organised by the Gandhi

Research Foundation, Jalgaon. It appears from the website of the

Foundation that it conducts a country-wide examination called

“GVSP (Gandhian Values for Sustainable Peace - Gandhi Vichar

Sanskar Pariksha) to inculcate among the young generation the

art of nonviolence in daily life.” Another certificate dated 22nd

December 2016 issued by the Yogavidya Gurukul, a research

institute recognised by Pune University, states that the appellant

has successfully completed the course Yoga Pravesh. We have

also taken on record the letter dated 4th September 2021 from

Medical Officer, Central Prison Hospital, Belagavi addressed to an

advocate, stating that the appellant has been diagnosed with Oral

Generalised Sub-Mucosal Fibrosis which is in premalignant

condition.

Criminal Appeal Nos. 1473-1474 of 2017 Page 23 of 30

25. The statement of objection filed by the respondent State in the

present appeal seeks to draw force from the observations of the

High Court noted above. In addition, the respondent State has

defended the death sentence on the grounds that the actions of

the appellant constitute a grave and uncommon crime

endangering the moral fabric of the society. The submission is

that the matter falls in the category of ‘rarest of the rare’ cases as

the appellant, under the pretext of giving biscuits, committed rape

and murder of a five-year old girl, and threw her dead body into

the stream. The deceased R could not have provided resistance,

much less provocation for the crime. Relying on the data compiled

by the National Crime Records Bureau which shows that an

average of 77 acts of rape were committed daily in India in the

year 2020, the counsel has sought a deterrent penalty for the

actions of the appellant.

26. A perusal of pages 186 and 187 of this appeal would show that on

the same day as conviction, the trial court imposed death

sentence vide a common order. The appellant has submitted that

this is in violation of Section 235(2) of the Code of Criminal

Procedure, which mandates that the accused must be heard on

sentence. In Santa Singh v. State of Punjab,4 when the accused

4 (1976) 4 SCC 190 Criminal Appeal Nos. 1473-1474 of 2017 Page 24 of 30 was convicted and sentenced to death by one single judgment, a

2-judge bench of this court found that there was infraction of

Section 235(2) of the Code of Criminal Procedure and set aside

the sentence and remanded the matter to the Sessions Court. The

aspect of remand was considered by a 3-judge bench in Dagdu

and Others v. State of Maharashtra,5 wherein it was observed

that the failure on the part of the trial court to hear the accused on

sentencing does not necessarily entail a remand to that court. If

the trial court has failed to do so and the accused challenges the

same before the higher court, it would be open to the higher court

to remedy the breach by giving a hearing to the accused on the

question of sentence. More precisely, Goswami J. in Dagdu

(supra) observed:

“Whenever an appeal court finds that the mandate of Section 235(2) CrPC for a hearing on sentence had not been complied with, it, at once, becomes the duty of the appeal court to offer to the accused an adequate opportunity to produce before it whatever materials he chooses in whatever reasonable way possible.”

Analysing several decisions of this Court on this issue, Uday

U. Lalit, J., in Shatrughna Baban Meshram v. State of

Maharashtra,6 observed that merely on account of infraction of

Section 235(2) of the Code of Criminal Procedure, the death

5 (1977) 3 SCC 68 6 (2021) 1 SCC 596 Criminal Appeal Nos. 1473-1474 of 2017 Page 25 of 30 sentence ought not to be commuted to life imprisonment. But in

light of the principle laid down in Dagdu (supra), we have afforded

adequate and sufficient opportunity to the appellant to place all

the relevant materials on record before us.

27. In Shatrughna Baban Meshram (supra), 67 judgments of the

Supreme Court in the previous 40 years were surveyed wherein

death sentence had been imposed by the trial court or the High

Court for the alleged offences under Sections 376 and 302 of the

Code, and where the age of victims was below 16 years. It was

noticed that:

“35.1. Out of these 67 cases, this Court affirmed the award of death sentence to the accused in 15 cases. In three (at Sl. Nos. 26-A, 33-A and 41-A) out of said 15 cases, the death sentence was commuted to life sentence by this Court in review petitions. Out of remaining 12 cases, in two cases (where review petitions were heard in open court in terms of law laid down in Mohd. Arif v. Supreme Court of India), namely, in cases at Sl. Nos. 51-A and 65-A, the death sentence was confirmed by this Court and the review petitions were dismissed. Thus, as on date, the death sentence stands confirmed in 12 out of 67 cases where the principal offences allegedly committed were under Sections 376 and 302 IPC and where the victims were aged about 16 years or below.

35.2. Out of these 67 cases, at least in 51 cases the victims were aged below 12 years. In 12 out of those 51 cases, the death sentence was initially awarded.

However, in 3 cases (at Sl. Nos. 26-A, 33-A and 41-A) the death sentence was commuted to life sentence in review.”

It appears from the above data that low age of the victim has

not been considered as the only or sufficient factor by this Court Criminal Appeal Nos. 1473-1474 of 2017 Page 26 of 30 for imposing a death sentence. If it were the case, then all, or

almost all, 67 cases would have culminated in imposition of

sentence of death on the accused. In the case of Bantu alias

Naresh Giri v. State of Madhya Pradesh,7 where the appellant

was accused of raping and murdering a six year old girl, this court

noted that though his act was heinous and required

condemnation, but it was not rarest of the rare, so as to require

the elimination of the appellant from the society. There too, there

was nothing on record to indicate criminal antecedents of the

appellant or to show that he would be a grave danger to the

society.

28. The learned trial court has recorded that the death sentence was

awarded on the ground that “the crime was committed in an

extremely diabolical manner and that it was cruel, barbaric and

revolting.” It has been rightly pointed out by the counsel for the

appellant that the trial court merely noticed that the appellant was

of young age (23 / 25 years) belonging to a very poor family, but

has not considered these as mitigating factors. The High Court

has noted that there are no mitigating circumstances at all. We

find this observation incorrect. To begin with, it is clear that the

appellant had no criminal antecedents, nor was any evidence

7 (2001) 9 SCC 615 Criminal Appeal Nos. 1473-1474 of 2017 Page 27 of 30 presented to prove that the commission of the offence was pre-

planned. As submitted by the counsel for the appellant, there is no

material shown by the State to indicate that the appellant cannot

be reformed and is a continuing threat to the society. On the

contrary, it can be seen from the Death Sentence Prisoner

Nominal Roll dated 17th July 2017 issued by the Chief

Superintendent, Central Prison, Belgaum, that the conduct of the

appellant in jail has been ‘satisfactory’. We would consider the

appellant’s conduct in prison as expiation for his past deeds, also

reflecting his desire to reform and take a humane turn.

Furthermore, the young age of the appellant at the time of

commission of the offence (23 / 25 years),8 his weak socio-

economic background,9 absence of any criminal antecedents,10

non pre-meditated nature of the crime,11 and the fact that he has

spent nearly 10 years 10 months in prison have weighed with us

as other extenuating factors, which add up against imposition of

death penalty which is to be inflicted only in rarest of the rare

cases. The respondent State has not shown anything to prove the

likelihood that the appellant would commit acts of violence as a

continuing threat to society; per contra, his conduct in the prison

8 Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652 9 Mulla v. State of U.P., (2010) 3 SCC 508 10 Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652 11 Mohan v. State of T.N., (1998) 5 SCC 336; Akhtar v. State of UP, (1999) 6 SCC 60 Criminal Appeal Nos. 1473-1474 of 2017 Page 28 of 30 has been described as satisfactory. There is no doubt that the

appellant has committed an abhorrent crime, and for this we

believe that incarceration for life will serve as sufficient

punishment and penitence for his actions, in the absence of any

material to believe that if allowed to live he poses a grave and

serious threat to the society, and the imprisonment for life in our

opinion would also ward off any such threat. We believe that there

is hope for reformation, rehabilitation, and thus the option of

imprisonment for life is certainly not foreclosed and therefore

acceptable.

29. Thus, we find sufficient mitigating factors to commute the

sentence of death imposed by the Sessions Court and confirmed

by the High Court into imprisonment for life, with the direction that

the appellant shall not be entitled to premature release/remission

for the offence under Section 302 of the Code until he has

undergone actual imprisonment for at least thirty (30) years. While

maintaining other sentences, we direct that the sentences shall

run concurrently and not consecutively. We say so as the

appellant has been sentenced to imprisonment for life for the

offence under section 376 of the Code, which sentence is also

imposed for the offence under section 302 of the Code.

Criminal Appeal Nos. 1473-1474 of 2017 Page 29 of 30

30. For the aforesaid reasons, we uphold the conviction of the

appellant for the offences under Sections 302, 376, 364, 366A

and 201 of the Code and the sentences awarded for the offences

under Sections 376, 364, 366A and 201 of the Code. The appeals

are, however, partly allowed by commuting the death sentence to

that of life imprisonment with the stipulation that the appellant

shall not be entitled to premature release/remission before

undergoing actual imprisonment of 30 years for the offence under

Section 302 of the Code and further the sentences awarded shall

run concurrently and not consecutively.12

The appeals and all pending applications are disposed of.

......................................J. (L. NAGESWARA RAO)

......................................J. (SANJIV KHANNA)

......................................J. (B.R. GAVAI)

NEW DELHI;

NOVEMBER 08, 2021.

12 In view of the Constitutional Bench decision in Union of India v. V. Sriharan alias Murugan and Others, (2016) 7 SCC 1, the above direction would not affect the constitutional power of the President or Governor under Article 72 or 161 of the Constitution of India. Criminal Appeal Nos. 1473-1474 of 2017 Page 30 of 30