Earabhadrappa Alias Krishnappa Vs.
State of Karnataka [1983] INSC 25 (11 March 1983)
SEN, A.P. (J) SEN, A.P. (J) VENKATARAMIAH,
E.S. (J)
CITATION: 1983 AIR 446 1983 SCR (2) 552 1983
SCC (2) 330 1983 SCALE (1)254
CITATOR INFO :
R 1985 SC1224 (4) R 1988 SC1275 (20) R 1989
SC 79 (10) R 1989 SC1890 (31) R 1991 SC 917 (8) F 1992 SC2045 (20)
ACT:
A. Evidence-Circumstantial evidence-Nature of
proof required for conclusion of guilt and conviction.
B. Indian Evidence Act-Section 27, conditions
prerequisite, there for- 'Fact' and "Fact discovered" explained.
C. Presumption under section 114 of the
Indian Evidence Act-Nature of presumption under illustration (a) explained.
D. Sentencing and duty of the Court in
appropriate case of conviction- Interference with sentence in criminal appeal
by the Supreme Court-Binding nature of Article 141 of the Constitution.
HEADNOTE:
The appellant, Earabhadrappa hailing from
village Mattakur, under the false name of Krishnappa and with a false address
obtained employment of service as a domestic servant under PW 3 Makrappa, the
husband of the deceased Bachamma, who was found murdered by strangulation on
the night between March 21-22, 1979 after having been robbed of her jewellery,
clothes, etc. Based on circumstantial evidence, the appellant, who was found
missing right from the early hours of the 22nd March, 1979 and who was
apprehended a year later on March 29, 1980, was charged with and convicted for
the offences under Sections 302, 392 IPC respectively. He was sentenced to undergo
rigorous imprisonment for a term of 10 years under section 392 IPC and to death
under Section 302. In appeal, the High Court confirmed both the conviction and
sentences imposed upon him. Hence the appeal by special leave. Dismissing the
appeal and modifying the sentence, the Court.
HELD: 1.1 To sustain a charge under s. 302 of
the Indian Penal Code, the mere fact that the accused made a statement leading
to the discovery of the stolen articles under s. 27 of the Evidence Act, by
itself is not sufficient. There must be something more to connect the accused
with the commission of the offence. The circumstances relied upon by the
prosecution in the instant case led to no other inference than that of guilt of
the accused as murder and robbery are proved to have been integral parts of one
and the same transaction and therefore the presumption arising under
illustration (a) to s.-114 of the Evidence Act is that not only the accused
committed the murder of the deceased but also committed robbery of her gold
ornaments which formed part of the same transaction.
The prosecution had led sufficient evidence
to connect the accused with the commission of the crime. [561 G-H] 553
1.2 For the applicability of s. 27 of the
Evidence Act, two conditions are pre-requisite, viz: (1) Information must be
such as has caused discovery of the fact, and (2) The information must
"relate distinctly" to the fact discovered." Under s. 27, only
so much of the information as distinctly relates to the facts really thereby
discovered is admissible. The word "fact" means some concrete or
material fact to which the information directly relates. [549A, 550B- C]
Pulukuri Kottayya v. Emperor, LR [1947] IA 65; Jaffer Hussein Dastgir V. State
of Maharashtra, [1970] 2 S.C.R.332, referred to.
2.1 The nature of presumption under
illustration (a) to s. 114 of the Evidence Act from recent and unexplained
possession must depend upon the nature of the evidence adduced. As to the
meaning of "recent possession", it was observed: No fixed time limit
can be laid down to determine whether possession is recent or otherwise and
each case must be judged on its own facts. The question as to what amounts to
recent possession sufficient to justify the presumption of guilt varies
according as the stolen article is or is not calculated to pass readily from
hand to hand. The fact that a period of one year had elapsed between the
commission of the crime and the recovery of the ornaments on a statement made
by the accused leading to their discovery under s. 27 of the Evidence Act
immediately upon his being apprehended by the police, cannot be said to be too
long particularly when the accused had been absconding during that period and
the stolen articles were such as were not likely to pass readily from hand to
hand. There was no lapse of time between the date of his arrest and the
recovery of the stolen property. The accused had no satisfactory explanation to
offer for his possession thereof. On the contrary, he denied that the stolen
property was recovered by him. The false denial by itself is an incriminating
circumstance. [56 H, 562 A-E]
3. In Bachan singh V. State of Punjab, [1980]
2 SCC 684, the Supreme Court, moved by compassionate sentiments of human
feelings has ruled that sentence of death should not be passed except in the
"rarest of rare" cases. The result now is that capital punishment is
seldom employed even though it may be a crime against the society and the
brutality of the crime shocks judicial conscience. The test laid down in Bachan
Singh's case is unfortunately not fulfilled in the instant case. That being so,
the Court is constrained to commute the sentence of death passed on the
appellant into one for imprisonment for life. [562 F-H, 563 A] Observation of
Dissent [A sentence or pattern of sentence which fails to take due account of
the gravity of the offence can seriously undermine respect for law. It is the
duty of the court to impose a proper punishment depending upon the degree of
criminality and desirability to impose such punishment as a measure of social
necessity as a means of deterring other potential offenders. Failure to impose
death sentence in such grave cases where it is a crime against society-
particularly in cases of murders committed with extreme brutality will bring to
naught the sentence of death provided under Section 302 of the Penal Code.]
[563 A-B] 554
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 669 of 1982.
Appeal by Special leave from the judgment and
order dated the 29th October, 1981 of the Karnataka High Court in Crl. Appeal
No. 241 of 1981 B.D. Sharma (A.C) for the Appellant.
M. Veerappa and Ashok Kumar Sharma for the
Respondent.
The Judgment of the Court was delivered by
SEN, J. Appellant Earabhadrappa @ Krishnappa is under sentence of death and
this appeal by special leave is directed against the judgment of the High Court
of Karnataka dated October 29, 1981. The Sessions Judge, Kolar by his judgment
dated March 21, 1981 convicted the appellant under s. 302 of the Indian Penal
Code for having committed the murder of one Smt. Bachamma, wife of P.W. 3
Makrappa and sentenced him to death. On reference, the High Court has upheld
the conviction of the appellant under s. 302 of the Indian Penal Code and
confirmed the death sentence passed on him. The appellant has also been
convicted by the learned Sessions Judge under s. 302 of the Indian Penal Code
for having robbed the deceased of her gold ornaments and clothes and sentenced
him to undergo rigorous imprisonment for a term of 10 years.
Upon the evidence presented at the trial it
transpired that on the night between March 21 and 22, 1979 the deceased Smt.
Bachamma was throttled to death at her house in village Mallur and relieved of
her gold ornaments. On the night in question, the deceased Smt. Bachamma as
usual served dinner to the family members. After taking his meals, P.W.3 went
upstairs to his bed-room, her mother-in-law P.W.2 Smt.
Bayamma went to the 'Kana' to keep a vigil
while the deceased slept in the hall adjoining the kitchen and her son P.W.4
G.M. Parkash slept in the courtyard of the house. The appellant who had
recently been employed as a servant by P.W. 3 slept in a room on the ground
floor where the silk cocoons used to be reared and kept. On the 22nd morning at
about 6 am when P.W.4 went to wake up his mother he found that she was lying
dead and he therefore went upstairs and called his father P.W.3. They saw that
the deceased had been strangulated to death and relieved of her ornament. Her
gold mangalsutra and gold-rope chain were missing so also the gold nose-ring
and gold ear-rings. On 555 the right side of the bed was lying the screw of the
missing gold nose-ring. There was also lying a towel (M.O. 1) which had been
given by P.W. 3 to the appellant for his use, and apparently the deceased has been
strangulated with the towel. The iron safe and almirah kept in the hall were
found open and bunch of keys which the deceased carried with her was found
missing. All the jewellery and cash of Rs. 1700/- kept in the iron safe and six
silk sarees kept in the almirah were also found missing. There was a search
made for the appellant but he was not to be found either in the house or in the
village and he had therefore absconded with the jewellery and valuables.
Intelligence report received by P.W. 26 Abdul
Mazeed, Circle Inspector of Police who had taken over the investigation from
P.W. 25 Sreenivasa Rao, Station officer Shidalaghatta on 28 March 1980 revealed
that the appellant was seen moving in Hosakote and Anekal Taluks and
accordingly P.W. 26 along with his staff searched for the appellant in both the
taluks but he could not be found, and therefore he encamped at Anekal on that
day. On March 29, 1980 he got definite information that the appellant was seen
in village Hosahally in Hosakote Taluk and was able to apprehend him at that
village at about 2 p,m. On being taken into custody, the appellant made a
statement Ex. P-35 leading to the discovery of the ornaments and clothes
belonging to the deceased from several places. He first led P.W. 26 to the
house of his sister P.W. 8 Smt. Yallamma in village Gudisagarapelly leading to
the recovery of four silk sarees (M. Os. 11 to 14) which were seized under
seizure memo Ex. P-4. From that place, he took him to village Mattakur, from
where he hails, to the house of one Dasappa leading to the recovery of the
screw of the missing gold nose-ring (M.O. 5) which was seized under seizure
memo Ex. P-7. Thereafter, he took P.W. 26 to the house of P.W. 12 Guruvareddy
leading to the recovery of a silk saree (M.O.15) which was seized under seizure
memo Ex. P-5 and then to the house of P.W. 13 Narayanareddy leading to the
recovery of the gold chain (M.O. 6) and a pair of gold bangles (M.OS. 7 &
8) which were seized under seizure memo Ex. P-6. The very day he took P.W. 26
to the house of P.W. 15 Chinnamma in Village Sollepura leading to the recovery
of a silk saree (M.O.10) which was seized under seizure memo Ex. P-8. On the
next day i.e. on the 30th the appellant took P.W. 26 to the house of P.W. 21
Ramachari in village Hosur who led them to the shop of P.W. 22 Palaniyachar
leading to the recovery of a pair of gold earrings (M.Os. 3 & 4) and a gold
ingot (M.O. 9) 556 which were seized under seizure memo Ex. P-15. The seized
articles have all been identified by P.W. 3 Makrappa and his mother P.W. 2 Smt.
Bayamma and son P.W. 4. G.M. Prakash as belonging to the deceased.
The appellant abjured his guilt and denied
the commission of the alleged offence stating that he had been falsely
implicated. He also denied that he ever made the statement Ex. P-35 or that the
stolen articles were recovered as a direct consequence to such statement.
In cases in which the evidence is purely of a
circumstantial nature, the facts and circumstances from which the conclusion of
guilt is sought to be drawn must be fully established beyond any reasonable
doubt and the fact and circumstances should not only be consistent with the
guilt of the accused but they must be in their effect as to be entirely
incompatible with the innocence of the accused and must exclude every
reasonable hypothesis consistent with his innocence. The chain of circumstances
brought out by the prosecution are these:
1. The appellant who hails from village
Mattakur was a stranger to village Mallur ostensibly in search of employment.
He falsely stated his name to be Krishnappa and gave a wrong address stating
that he belonged to a nearby village. The securing of employment by giving out
false name and wrong address shows that he had some oblique motive in his mind.
He obtained employment with p.w. 3 and gained his confidence and was allowed to
sleep in a room on the ground floor where the silk cocoons were kept. He thus
became familiar with the places where the inmates of the house used to sleep
and where the jewellery, cash and other valuable belongings used to be kept
i.e. in the iron safe and almirah kept in the hall adjoining the kitchen.
2. It appears that the appellant had
pre-planned the commission of robbery. Earlier in the evening he went to P.W. 6
Narayanappa and borrowed Rs. 2 and thereafter went to the toddy shop of P.W. 7
Smt.
Anasuyamma and took liquor. On the night in
question he reached the 'kana' at about 9 p.m.
557 and was reprimanded by P.W. 2 for being
late. Upon reaching the house he went upstairs in an inebriated state and told
P.W. 3 that he no longer wanted to serve and he should settle his accounts.
P.W. 3 told him to come in the morning and
take his wages. It therefore appears that the appellant had made up his mind to
leave the village.
3. On the next morning i.e. on the 22nd at
about 6 a.m. it was discovered that the deceased Smt. Bachamma had been
strangulated to death. The gold ornaments on her person and in the iron safe
had been stolen. There was a search made for the appellant but he was not to be
found anywhere.
Near the dead body of the deceased was lying
the blood-stained towel (M.O. 1) given by P.W. 3 to the appellant for his use
with which the deceased had apparently been strangulated. The appellant had
therefore absconded from the scene of occurrence after committing the murder
and robbery.
4. After the appellant had suddenly
disappeared from the house of P.W. 3 with the gold ornaments and other
valuables, there was a frantic search made by P.W. 25, Sreenivasa Rao and P.W.
26 Abdul Mazeed at various places and he was absconding till March 29, 1980
until he was apprehended by P.W. 26 at village Hosahally in Hosakote taluk at
about 2 p.m. On being arrested after a year of the incident on March 29, 1980,
the appellant made the statement Ex. P-35 leading to the recovery of some of
the stolen gold ornaments of the deceased and her six silk sarees from
different places and they have all been identified by P.Ws. 2, 3 and 4 as
belonging to the deceased.
5. The appellant falsely denied the
recoveries and could offer no explanation for his possession of the stolen
articles.
6. It appears from the prosecution evidence
that after the commission of the murder and robbery, the appellant had with him
the incriminating articles and 558 taken them to his native place Mattakur
where he disposed them of to several persons. The testimony of P.W. 26 reveals
that in consequence of the information given by the appellant he recovered the
missing screw of the gold nose ring (M.O.5) from one Dasappa in village
Mattakur, that of P.W,12 Guruvareddy that appellant had sold to him the silk
saree (M.O.15) for Rs. 150/-, and that of P.W.13 Narayanareddy discloses that
the appellant had sold to him a gold rope chain (M.O.6) and a pair of gold
bangles (M.Os. 7&8) for Rs. 2000/-, The testimony of P.W.8, Smt, Yallamma,
sister of the appellant, hailing from village Gudisagarapally show that the
appellant had given her four silk sarees (M.Os.11 to 14), and that of P.W.15
Smt. Chinnamma of village Sollepura, who was known to the appellant from
before, shows that the appellant gave her the silk saree for Re. 1/- when she
refused to take his gratis. The testimony of P.W. 21 Ramachari of village Hosur
shows that appellant brought with him a pair of gold ear- rings and a gold
ingot and wanted to sell them saying that he was hard-pressed. This witness
took him to P.W. 22 Palaniyachar and the appellant sold the gold ingot (M.O.9)
for Rs. 330/-and a pair of gold ear-rings (M.Os. 3&4) for Rs. 500/-.
From this evidence it is apparent that the
appellant while he was absconding moved from place to place trying to dispose
of the stolen property to various persons.
The learned Sessions Judge as well as the
High Court has come to the conclusion that the circumstances alleged have been
fully proved and they are consistent only with the hypothesis of the guilt of
the accused. We are inclined to agree both with their conclusion and the
reasoning. The chain of circumstances set out above establishes the guilt of
the appellant beyond all reasonable doubt There is no controversy that the
statement made by the appellant Ex. P-35 is admissible under s. 27 of the
Evidence Act. Under s. 27 only so much of the information as distinctly relates
to the facts really thereby discovered is admissible. The word 'fact' means
some concrete or material fact to which the information directly relates. As
559 explained by Sir John Beaumont in Pulukuri Kottaya v. Emperor (1):
"It is fallacious to treat the 'fact
discovered' within the section as equivalent to the object produced: the fact
discovered embraces the place from which the object is produced, and the
knowledge of the accused as to this, and the information given must relate
distinctly to this fact".
For the applicability of s. 27 therefore two
conditions are prerequisite, namely (1) the information must be such as has
caused discovery of the fact; and (2) the information must 'relate distinctly'
to the fact discovered. In the present case, there was a suggestion during the
trial that P.W. 26 had prior knowledge from other sources that the
incriminating articles were concealed at certain places and that statement Ex.
P-35 was prepared after the recoveries had been made and therefore there was no
'fact discovered' within the meaning of s. 27 of the Evidence Act. We need not
dilate on the question because there was no suggestion made to P.W. 26 during
his cross- examination that he had known the places where the incriminating
articles were kept. That being so, the statement made by the appellant Ex. P-35
is clearly admissible in evidence.
In Jaffer Hussein Dastgir v. State of
Maharasetra, (2) the portion of the statement with reference to which this
question arose read as follows:
"I will point out one Gaddi alias
Ramsingh of Delhi at Bombay Central Railway Station at III Class Waiting Hall
to whom I have given a Packet containing diamonds of different sizes more than
200 in number." The only question for decision in that case before the
Court was whether the aforesaid statement made by the accused was admissible in
evidence by virtue of s. 27 of the Evidence Act, the diamonds having been found
with the person named. In the facts of that case the Court came to the
conclusion that the police had already known that the diamonds were with the
person named by the accused with the result that there was no fact discovered
by the police as a result of the statement made by the accused. However, it was
held clearly that, but for such knowledge of the police, the aforesaid
statement of the accused would have been admissible in evidence.
560 In the present case, some of the material
portions in the statement Ex. P-35 which distinctly relate to the fact
discovered read:
"If I am taken to Gudisagarapally, I
shall get the four silk sarees." At village Gudisagarapally the appellant
took P.W. 26 to the house of his sister P.W. 8 Smt. Yallamma who produced four
silk sarees (M.Os. 11 to 14) which were seized under seizure memo Ex. P-4. P.W.
8 Smt. Yallamma states that she is the sister of the appellant and that he had
given to her the four silk sarees. It was suggested that the police had not
only planted P.W. 8 as a sister of the appellant but also the four silk sarees
in question, but there is no basis for this assertion. Then the statement Ex.
P-35 recites:
"If I am taken to native place Mattakur,
I shall get one gold nose ring without screw .. one silk saree.....
one gold rope chain and one pair of gold ear
rings." At village Mattakur from where he hails, the appellant took P.W.
26 to the house of one Dasappa leading to the recovery of the screw of the
missing gold nose ring (M.O. 5) which was seized under seizure memo Ex. P-7.
Thereafter, he took P.W. 26 to the house of P.W. 12 Guruvareddy leading to the
recovery of a silk saree (M.O. 15) which was seized under seizure memo Ex. P-5.
He then took P.W. 26 to the house of P.W. 13 Narayanareddy leading to the
recovery of a gold rope chain (M.O. 6) and a pair of gold bangles (MOs.
7&8) which were seized under seizure memo
Ex. P-6. The prosecution could not examine Dasappa because he was dead during
the trial. P.W. 12 stated that the appellant had sold him a silk saree for Rs.
150 while P.W. 13 stated that he had sold him a gold rope chain and a pair of
gold bangles for Rs. 2000/-. The statement Ex. P-35 contains similar recitals
leading to the recovery of the other incriminating articles, viz (1) A silk
saree (M.O.10) given by the appellant to P.W. 15 Smt. Chinnamma of village
Sollepura whom he knew from before, for a token price of Re. 1/ -; (2) A pair
of gold ear rings (M.Os. 3&4) and a gold ingot (M.O.9) from P.W. 22
Palaniyachar which he had purchased from the appellant for Rs. 830.
Apart from the question of sentence, two
other contentions are raised, namely: (1) There is no proper identification
that the seized ornaments belonged to the deceased Smt. Bachamma; and (2) the
presumption arising under illustration (a) to s. 114 of the Evidence 561 Act,
looking to the long lapse of time between the commission of murder and robbery
and the discovery of the stolen articles, should be that the appellant was
merely a receiver of the stolen articles and therefore guilty of an offence
punishable under s. 411 of the Indian Penal Code and not that he was guilty of
culpable homicide amounting to murder punishable under s. 302 as well. We are
afraid, none of these contentions can prevail.
Our attention was drawn to the testimony of
P.W. 13 Narayanareddy who, during his cross-examination, stated that ornaments
similar to the gold rope chain and the pair of gold bangles were available
everywhere and that other ornaments were also in his house. From this it is
sought to be argued that the seized ornaments cannot be treated to be stolen
property as they are ordinary ornaments in common use. Nothing really turns on
this because P.W. 2 Smt. Bayamma, mother-in-law of the deceased, her husband
P.W. 13 Makarappa and son P.W. 4 G.M. Prakash have categorically stated that
the seized ornaments belonged to the deceased Smt. Bachamma. There is no reason
why the testimony of these witnesses should not be relied upon particularly
when P.W. 2 Smt. Baymma was not cross-examined at all as regards her
identification of the seized ornaments and clothes as belonging to the
deceased. Even if the seized ornaments could be treated to be ornaments in
common use, this witness could never make a mistake in identifying the seized
six silk sarees (M.Os. 10 to 15). It is a matter of common knowledge that
ladies have an uncanny sense of identifying their own belongings, particularly
articles of personal use in the family. That apart, the description of the silk
sarees in question shows that they were expensive sarees with distinctive
designs. There is no merit in the contention that the testimony of these
witnesses as regards the identity of the seized articles to be stolen property
cannot be relied upon for want of prior test identification.
There is no such legal requirement.
This is a case where murder and robbery are
proved to have been integral parts of one and the same transaction and
therefore the presumption arising under illustration (a) to s. 114 of the
Evidence Act is that not only the appellant committed the murder of the
deceased but also committed robbery of her gold ornaments which form part of
the same transaction. The prosecution has led sufficient evidence to connect
the appellant with the commission of the crime. The sudden disappearance of the
appellant from the house of P.W.3 on the morning of March 22, 1979 when 562 it
was discovered that the deceased had been strangulated to death and relieved of
her gold ornaments, coupled with the circumstance that he was absconding for a
period of over one year till he was apprehended by P.W. 26 at village Hosahally
on March 29, 1980, taken with the circumstance that he made the statement Ex.
P-35 immediately upon his arrest leading to the discovery of the stolen
articles, must necessarily raise the inference that the appellant alone and no
one else was guilty of having committed the murder of the deceased and robbery
of her gold ornaments. The appellant had no satisfactory explanation to offer
for his possession of the stolen property. On the contrary, he denied that the
stolen property was recovered from him. The false denial by itself is an
incriminating circumstance. The nature of presumption under illustration (a) to
s. 114 must depend upon the nature of the evidence adduced. No fixed time limit
can be laid down to determine whether possession is recent or otherwise and
each case must be judged on its own facts. The question as to what amounts to
recent possession sufficient to justify the presumption of guilt varies
according as the stolen article is or is not calculated to pass readily from
hand to hand. If the stolen articles were such as were not likely to pass
readily from hand to hand, the period of one year that elapsed cannot be said
to be too long particulary when the appellant had been absconding during that
period.
There was no lapse of time between the date
of his arrest and the recovery of the stolen property.
Finally, there remains the question of
sentence, it was cruel hand of destiny that the deceased Smt. Bachamma met a
violent end by being strangulated to death by the appellant who betrayed the
trust of his master p.w. 3 and committed her pre-planned cold-blooded murder
for greed in achieving his object of committing robbery of the gold ornaments
on her person and in ransacking the iron safe and the almirah kept in her
bedroom on the fateful night. The appellant was guilty of a heinous crime and
deserves the extreme penalty.
But we are bound by the rule laid down in Bachan
Singh v. State of Punjab (1) where the Court moved by compassionate sentiments
of human feelings has ruled that sentence of death should not be passed except
in the 'rarest of the rare' cases. The result now is that capital punishment is
seldom employed even though it may be a crime against the society and the
brutality of the crime shocks the judicial 563 conscience. A sentence or
pattern of sentence with fails to take due account of the gravity of the
offence can seriously undermine respect for law. It is the duty of the Court to
impose a proper punishment depending upon the degree of criminality and
desirability to impose such punishment as a measure of social necessity as a
means of deterring other potential offenders. Failure to impose a death sentence
in such grave cases where it is a crime against the society particularly in
cases of murders committed with extreme brutality-will bring to naught the
sentence of death provided by s. 302 of the Indian Penal Code. The test laid
down in Bachan Singh's case (supra) is unfortunately not fulfilled in the
instant case. Left with no other alternative, we are constrained to commute the
sentence of death passed on the appellant into one for imprisonment for life.
Subject to this modification in the sentence,
the appeal fails and is dismissed.
S. R. Appeal dismissed.
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