Vs. State of Karnataka  Insc 273 (21 April 2005)
G. Balakrishnan & B. N. Srikrishna B.N.Srikrishna, J.
appeal arises out of a judgment of the High Court of Karnataka upholding the
conviction of the appellant on the charge of Section 302 and confirming the
death penalty imposed on the accused-appellant.
appellant-Saibanna was convicted for the murder of his wife- Nagamma, aged
about 22 years, and his daughter-Vijayalakshmi, aged about 1= years. The
appellant had earlier committed murder of his first wife- Malakawwa for which
he was convicted in Sessions Case No. 32/88. While the appellant was an under
trial prisoner, he came into contact with PW 1- Dattu, who was also an under
trial prisoner. PW 1-Dattu is the father of the deceased, Smt. Nagamma. The
appellant persuaded PW 1 to give his daughter- Nagamma in marriage to him. PW 1
also gave an assurance to the appellant that he would try and get the appellant
acquitted in the case against him. Later on, PW 1-Dattu was discharged by the
court. During the period of the trial, the appellant was on bail for sometime
and he utilised this for getting married to Nagamma. He also begot a female
child Vijayalakshmi from her.
thereafter convicted in Sessions Case No. 32/88 and was handed down a sentence
of life imprisonment. His appeal against conviction in that case was dismissed
by the High Court of Karnataka.
serving the sentence of life imprisonment, the appellant was released on parole
for a period of one month on 19th August, 1994.
On 12th September, 1994, the appellant along with his wife,
deceased Nagamma, their child, Vijayalakshmi, PW 21-Sharanawwa, Mahantappa and
others went in a jeep to the house of PW 1-Dattu at Bhosga Village. They had a festivity and a good festive meal. Thereafter,
the appellant, Smt. Nagamma, child Vijayalakshmi, PW 1-Dattu, PW 21-Sharanawwa
and Mahantappa went to the newly constructed house of PW 6-Hanumanthappa
(brother of PW 1) to sleep there. During the night, suspecting the fidelity of
his second wife, Nagamma, the appellant assaulted her with a jambia ( a sort of
long bladed knife used for attack or hunting) and inflicted 21 injuries. On
being assaulted, and grievously injured, she ran out of the room and fell
outside the room where PW 1 and PW 21 were sleeping. The accused also assaulted
the minor child Vijayalakshmi with the jambia and inflicted 6 injuries on her.
He also attempted to commit suicide by inflicting injuries on his person. As a
result of the injuries inflicted, both Nagamma and minor child Vijayalakshmi
died, but the appellant survived to face the trial.
first information was lodged by PW 1 at 8:15 a.m. in the morning of 13th September, 1994 with the jurisdictional police at Afzalpur. The First Information
Report was registered in Crime No. 59/94 for the offence under Sections 303,
307 and 309 IPC. The police carried out investigations during the course of
which the bodies were subjected to autopsy, necessary mahazars were carried
out, weapons lying at the spot were seized, clothes of the deceased and of the
accused were also seized. Statements of material witnesses came to be recorded
after which the charge sheet was filed against the accused-appellant.
prosecution examined in all 26 witnesses and got marked Ex. P 1 to P 24 as well
as M.Os. 1 to 17. PW 21-Sharanawwa is the mother-in-law of the younger brother
of the appellant. Her evidence is most crucial. She stated in her evidence that
a day earlier to the incident when she was in Mandewal Village, the appellant
came there and took her along with his deceased wife- Nagamma, deceased
daughter-Vijayalakshmi and PW 5-Shashikala to Bhosga Village where the parental
house of Nagamma is situated. When all of them went to the house of PW 1, the
appellant requested the parents of the deceased, i.e., PW 1 and PW 8, to get
him released from jail and they promised that they would try their best to do
so. Thereafter, all of them took dinner after which PW 21, appellant-Saibanna,
deceased Nagamma, deceased Vijayalakshmi and Mahantappa (grand-son of PW 21)
went to the new house belonging to the brother of PW 1 for sleeping during the
night. The witness stated that the appellant, his wife-Nagamma and his
daughter-Vijayalakshmi slept in one room while PW 21 and her grand-son, Mahantappa,
slept in another room. As there were lot of mosquitoes troubling them, PW 21
and Mahantappa came out of the room where they were initially sleeping and
slept outside in the verandah. In the middle of the night, PW 21 heard some
noise and came awake. She saw Saibanna-appellant assaulting his wife Nagamma
with a knife on her chest, stomach and other parts. The injured Nagamma came
out of the room shouting followed by the appellant who continued to assault her
outside the room also. Upon being questioned as to why he was assaulting Nagamma,
the appellant gave no reply, but went inside the room and also assaulted his
daughter Vijayalakshmi and inflicted injuries on his own person with the same
weapon. All this was noticed, according to witness PW 21, as there was a
chimney lamp at the place which was burning.
cross-examination of this witness produced no such discrepancies or
contradictions which could have led to disbelieving the witness. The trial
court and the High Court have completely believed this witness, particularly,
when no ill-will or animosity of this witness towards the accused was even
remotely suggested. The fact that she was the close relative of the appellant
(mother-in-law of the younger brother of the appellant) and that she was aged
about 70 years and would gain nothing by levelling a false allegation on the
appellant also weighed in the courts. The other witnesses examined were
circumstantial witnesses. PWs. 4, 5, 6, 7, 8, 9, 12 and 16 who were post-
incident witnesses, who spoke about the presence of PW 21 at that spot and
seeing the injuries on both the deceased and also on the accused. To that
extent, their evidence is corroborative. Vijayalakshmi and the appellant in the
injured state were taken to a Doctor for medical aid. The Doctor-PW 10 had
noticed the injuries on both of them. PW 10 clearly opined that the injuries
found on the body of the accused were self-inflicted. The High Court accepted
the evidence of PW 10 and also noticed that the complaints/First Information
Report had been lodged without delay. Even in his statement under Section 313
of the Criminal Procedure Code, the appellant admitted his presence at the time
of the offence, but denied the other incriminatory circumstances put to him.
careful consideration of the entire material evidence, both the Sessions Court
and the High Court concurrently found that the prosecution had proved beyond
reasonable doubt that the accused was guilty of the offence under Section 302
IPC. Although, originally the accused had been charged under Section 303 IPC,
when the Sessions Court was at the stage of sentencing, it was brought to its
attention that Section 303 IPC had been struck down as unconstitutional by this
Court in Mithu v. State of Punjab .
Sessions Court was of the view that, on the evidence, the charge of Section 302
IPC was made out and the appellant could be convicted of offence under Section
302 IPC as there was no prejudice caused to him by the change of the charge.
Sessions Court took the view that the case belonged to the category of
"rarest of rare cases" and that there were no mitigating
circumstances and that the only condign punishment was sentence of death. In
the High Court, however, there was disagreement between the two learned Judges
hearing the appeal and the confirmation reference. One learned Judge took the
view that the appropriate punishment would be life imprisonment, while the
other took the view that it was a fit case in which death sentence had to be
imposed. The case was placed before a third learned Judge of the High Court,
who took the view that the case at hand was a "rarest of rare case"
involving pre-planned brutal murders without provocation and, hence, a fit case
where the death sentence imposed by the Sessions Court had to be confirmed.
learned counsel for the appellant and the State have taken us through the
record. We have also heard the learned counsel on both sides and concur with
the finding of the Sessions Court as well as the High Court in appeal that the
appellant is guilty of the offence of murder under Section 302 IPC of his wife-Nagamma
and his minor daughter-Vijayalakshmi. The question is, what should be the
appropriate punishment to be imposed in this case ? In the case of Bachan Singh
v. State of Punjab the constitutional validity of the
provision for death penalty was upheld. The Constitutional Bench pointed out
that the present legislative policy discernible from Section 235(2) read with
Section 354(3) of the Code of Criminal Procedure is that "it is only when the
culpability assumes the proportion of total depravity that 'special reason'
within the meaning of section 354(3) for imposition of the death sentence can
be said to exist". Broad illustrative guidelines of such instances were
also indicated therein. It was laid down that the legislative policy applied in
section 354(3) of the Code of Criminal Procedure is that, if a person convicted
of murder, life imprisonment is the rule and death sentence an exception to be
imposed in the "rarest of the rare" cases.
Singh v. State of Punjab it was observed that it was only in rarest of rare
cases, when the collective conscience of the community is so shocked that it
will expect the holders of the judicial power centre to inflict death penalty
irrespective of their personal opinion as regards desirability or otherwise of
retaining death penalty.
reading of Bachan Singh (supra) and Machhi Singh (supra) indicates that it
would be possible to take the view that the community may entertain such
sentiment in the following illustrative circumstances:
When the murder is committed in an extremely brutal, grotesque, diabolical,
revolting, or dastardly manner so as to arouse intense and extreme indignation
of the community.
When the murder is committed for a motive which evinces total depravity and
meanness; e.g. murder by hired assassin for money or reward; or cold-blooded
murder for gains of a person vis-`-vis whom the murdered is in a dominating
position or in a position of trust; or murder is committed in the course for
betrayal of the motherland.
When murder of a member of a Scheduled Caste or minority community etc. is
committed not for personal reasons but in circumstances which arouse social
wrath; or in cases of 'bride burning' or 'dowry deaths' or when murder is
committed in order to remarry for the sake of extracting dowry once again or to
marry another woman on account of infatuation.
When the crime is enormous in proportion. For instance when multiple murders,
say of all or almost all the members of a family or a large number of persons
of a particular caste, community, or locality, are committed.
When the victim of murder is an innocent child, or a helpless woman or old or
infirm person or a person vis-`-vis whom the murderer is in a dominating
position, or a public figure generally loved and respected by the community.
Perumal v. State of Tamil
Nadu this Court
sympathy to impose inadequate sentence would do more harm to the justice
delivery system to undermine the public confidence in the efficacy of law and
society could not long endure under serious threats. If the courts did not
protect the injured, the injured would then resort to private vengeance. It is,
therefore, the duty of every court to award proper sentence having regard to
the nature of the offence and the manner in which it was executed or committed
etc." In Devender Pal Singh v. State of NCT of Delhi the death sentence was upheld by
this Court on application of these broad tests by a majority of 2:1 notwithstanding
the dissenting view of Shah, J. holding the accused to be innocent.
not necessary to multiply authorities which are mere instances of application
of the tests evolved by Bachan Singh (supra) read in the light of Machhi Singh
(supra) to different fact situations. The High Court has enumerated the
following circumstances in this case as indicative that it is one of the
"rarest of rare cases" where imposition of death penalty is
accused was already convicted to life imprisonment for murder of his first wife
Malakawwa. He committed the present murders while he was out on parole.
That the murder was the result of preplanning on his part is evident from the
fact that the murder weapon is a jambia, a hunting knife used for attack, not
ordinarily available in a house.
Even if the accused had some reason to suspect the fidelity of his wife, which
motivated him to murder her, there could have been absolutely no reason for
killing the defenceless child of 1= years of age.
murders were committed when the victims were helpless and asleep.
extenuating circumstances in favour of the accused were either pleaded or
learned counsel for the appellant, however, contended that notwithstanding
these reasons enumerated by the trial court and the High Court, the case did
not fall within the parameters for being an exceptional one deserving the death
penalty. Reliance was placed on the judgment of Ranjit Singh alias Roda v.
Union Territory of Chandigarh . It was contended that it was also a case where
the accused had committed the offence of murder when he was out on parole while
serving life imprisonment for his first conviction. Notwithstanding such
conduct of the accused, this Court reduced the sentence of death imposed on him
to one of rigorous imprisonment for life. The reason why this was done by this
Court is seen in Para 2 of the judgment. The Court was
confronted with the case of two accused, both with identical motive of vendetta
and revenge, and both had behaved in a cruel manner in inflicting as many as 32
injuries with knives on the deceased who died immediately as a result of the
assault on him.
however, one of them had been awarded life imprisonment while the other was
awarded death penalty. It was in these circumstance that this Court appears to
have been impelled to modify the sentence of life imprisonment in the case of
the appellant before it.
Singh v. State of Bihar was pressed into service to suggest that, instead of
death penalty the appellant could be sentenced to suffer rigorous imprisonment
for life with the condition that he shall not be released before completing an
actual term of 20 years including the period already undergone. Our attention
was also drawn to Shri Bhagwan v. State of Rajasthan , Dalbir Singh v. State of Punjab and Prakash Dhawal Khairnar (Patil) v. State of Maharashtra in support of this.
appears to us that the law as such has been crystallized by the judgment of the
Constitution Bench in Bachan Singh (supra) and reformulated in Machhi Singh's
case (supra). Most of the judgments cited before us are merely instances of
application of that law to facts illustrating the judicial response of
individual Judges. Even with the same broad guidelines, as indicated in the
aforesaid judgments, as to whether the circumstances make it a 'rarest of rare
case' is a matter of judicial assessment.
prisoner sentenced to life imprisonment is bound to serve the remainder of his
life in prison unless the sentence is commuted or remitted and that such
sentence could not be equated with any fixed term . If that be so, there could
be no imposition of a second life term on the appellant before us as it would
be a meaningless exercise.
teeth of section 427(2) of the Code of Criminal Procedure, 1973 it is doubtful
whether a person already undergoing sentence of imprisonment for life can be
visited with another term of imprisonment for life to run consecutively with
the previous one.
Krishna Mochi v. State of Bihar the law
on the subject was restated by this Court in Paragraphs 41 to 44. After
application of the said law, the Court upon assessing the facts before it
unhesitatingly upheld that the death penalty was the appropriate penalty.
taking all the circumstances in consideration, we are of the view that the High
Court was right in coming to the conclusion that the appellant's case bristles
with special circumstances requisite for imposition of the death penalty.
result, we see no reason to take a different view of the matter.
High Court judgment is not liable to be faulted on any account. The appeal has
no merit and is hereby dismissed.