Karnataka High Court
Ramesh @ Rama Laxman Jadhav vs State Of Karnataka on 15 July, 2022
Bench: K.S.Mudagal, M.G.S. Kamal
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.M.G.S.KAMAL
CRL.R.C.No.100003/2019
C/W
CRL.A.No.100271/2019
IN CRL. R.C.No.100003/2019
BETWEEN
THE STATE
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD,
REP. BY NIPPANI POLICE STATION,
BELAGAVI. ... COMPLAINANT
(BY SRI V.M.BANAKAR, ADV.)
Digitally signed
by J MAMATHA
Location: High
AND
J Court of
Karnataka,
MAMATHA Dharwad Bench
Dharwad. RAMESH ALIAS RAMA LAXMAN JADHAV
Date: 2022.07.15
14:36:30 +0530 AGE:31 YEARS,
R/O KHADAKLAT, SHINGE GALLI,
TQ:CHIKKODI, DIST:BELAGAVI. ... ACCUSED
(BY SRI MAHESH WODEYAR, ADV)
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366 OF CR.P.C. FOR CONFIRMATION
OF DEATH SENTENCE AWARDED TO ACCUSED - RAMESH ALIAS
-2-
RAMA LAXMAN JADHAV, AGE:31 YEARS, R/O KHADAKLAT, SHINGE
GALLI, TQ:CHIKKODI, DIST:BELAGAVI, PASSED BY THE VIII
ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI, VIDE
JUDGMENT OF CONVICTION DATED 02.07.2019 AND 03.07.2019
IN S.C.No.70/2017.
IN CRIMINAL APPEAL No.100271/2019
BETWEEN
RAMESH @ RAMA LAXMAN JADHAV
AGED ABOUT 32 YEARS, OCC:MASON,
R/O KHADAKLAT, SHINGE GALLI,
TQ:CHIKKODI, DIST:BELAGAVI. ... APPELLANT
(BY SRI MAHESH WODEYAR, ADV.)
AND
THE STATE OF KARNATAKA
NIPPANI RURAL POLICE STATION
REP. BY ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH,
DHARWAD. ... RESPONDENT
(BY SRI V.M.BANAKAR, ADDL. SPP)
THIS APPEAL IS FILED U/S 374 (2) OF CR.P.C. SEEKING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
02.07.2019 PASSED BY THE VIII ADDL. DIST. AND SESSIONS
JUDGE, BELAGAVI, IN S.C.No.70/2017 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 376 AND 302 OF IPC AND
CONSEQUENTLY ACQUIT THE APPELLANT FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 376 AND 302 OF IPC.
THE CRIMINAL REFERENCE CASE AND THE APPEAL COMING
ON FOR HEARING ON 22.06.2022 AND THE SAME HAVING BEEN
-3-
HEARD AND RESERVED FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the order of conviction and sentence
passed against him the accused in S.C.No.70/2017 on the file
of VIII Addl. District and Sessions Judge, Belagavi has
preferred the above appeal.
2. The appellant was prosecuted in the said case for
the offences punishable under Sections 376 and 302 IPC on
the basis of the charge-sheet filed by Nippani police in
Cr.No.241/2016 of their police station. Cr.No.241/2016 was
registered against the appellant on the basis of the complaint
Ex.P.1 filed by PW-1 Banappa Dareppa Navalagi. Appellant
was the sole accused in the said case. For the purpose of
convenience, parties will be referred to henceforth according
to their ranks before the trial Court.
3. Complainant alleged that on 21.10.2016 at 9
p.m. the accused, inducing his sister Kalavathi of getting a
Janatha plot allotted to her and that her photographs are
needed for that, took her from his house in the guise of going
to photo studio. He further alleged that his sister did not
return home, to enquire the accused was not found in the
village, when they were searching they found her dead body
on next morning at 11 a.m. in the Government PU College
compound with homicidal injuries. He alleged that the
accused on committing rape on her has murdered her.
4. PW-17 the CPI of Nippani police circle on the
basis of such complaint, registered the FIR as per Ex.P.27
against the accused. He conducted the investigation and
filed the charge-sheet. The trial Court framed the charges
against the accused under Sections 376 and 302 IPC. Since
the accused denied the charges and claimed the trial, trail
was conducted. In support of the case of the prosecution
PW-1 to PW-20 were examined, Ex.P.1 to Ex.P.47 and M.O.1
to M.O.26 were marked. After his examination under Section
313 Cr.P.C the accused did not file any defence statement or
lead any defence evidence.
5. The trial Court on hearing the parties, by the
impugned judgment and order convicted the accused for the
offences punishable under Sections 376 and 302 of IPC and
sentenced him as follows:
Offence Imprisonment Fine In default
sentence
376 IPC Life imprisonment Rs.1,00,000/- SI for a period
of two years
302 IPC Sentenced to
death
6. The trial Court convicted the accused on the
ground that the circumstances of motive, last seen together
and recovery of the incriminating material, extra judicial
confession were proved by acceptable evidence and such
evidence corroborated the medical evidence. The trial Court
sentenced the accused to death on the ground that he has
committed the preplanned, brutal murder of innocent widow
and the case falls in the category of rarest of rare cases. The
accused has challenged the said order of conviction and
sentence in Crl.A.No.100271/2019 and the State is seeking
confirmation of death sentence in Crl.R.C.No.100003/2019.
Submissions of Shri Mahesh Wodeyar, learned counsel
for the appellant/accused:
7. There were no eyewitnesses to the incident. The
case of the prosecution was based on circumstantial
evidence. In such cases the chain of circumstances shall be
so complete leading to the only hypothesis of the guilt of the
accused and nothing else. If there is single missing link in
the circumstances the accused is entitled to the benefit of
doubt. PW-1 in his evidence states that he had not seen the
accused and deceased together going to photo studio. Till
next day he does not file the complaint. PW-1 in his cross-
examination states that he does not know Kannada and what
is written in the complaint. PW-1 had not seen the accused
and deceased going together towards college. He does not
explain how he goes directly to the college compound where
the dead body was found. PW-5 the photographer does not
explain how the original bill Ex.P.10 came in his possession.
His camera was not seized. The evidence of PWs-8 and 9 the
other witnesses to the last seen theory was not acceptable.
PW-7 in the ordinary course should have informed PW-1
regarding the extra judicial confession. Therefore his
evidence was not trustworthy. M.O.10 the stone allegedly
used for commission of the offence was not referred to Finger
Prints' Expert. As per the medical evidence no seminal stains
were found on the dead body. That falsifies the theory of
rape. The medical evidence as to the time of death does not
match with the prosecution version of time of death. The
case does not fall in the category of the rarest of rare cases.
Therefore the impugned order of conviction and sentence
warrants interference of this Court. In support of his
submissions, he relies on the following judgments:
i) CHANDRAPAL VS. STATE OF CHHATTISGARH reported
in (2022) SCC ONLINE SC 705,
ii) SHAILENDRA RAJDEV PASVAN AND OTHERS VS.
STATE OF GUJARAT AND OTHERS reported in (2020)
14 SCC 750,
iii) NIZAM AND ANOTHER VS. STATE OF RAJASTHAN
reported in (2016) 1 SCC 550,
iv) STATE OF RAJASTHAN VS. NARESH reported in (2009)
9 SCC 368,
v) TARSEEM KUMAR VS. DELHI ADMINISTRATION
reported in 1994 SUPP (3) SCC 367,
vi) GAMBHIR VS. STATE OF MAHARASHTRA reported in
(1982) 2 SCC 351,
vii) KANHAIYA LAL VS. STATE OF RAJASTHAN reported in
(2014) 4 SCC 715,
viii) ANJAN KUMAR SARMA AND OTHERS VS. STATE OF
ASSAM reported in (2017) 14 SCC 359,
ix) VIJAY THAKUR VS. STATE OF HIMACHAL PRADESH
reported in (2014) 14 SCC 609,
x) BHAGWANI VS. STATE OF MADHYA PRADESH reported
in (2022) SCC ONLINE SC 52,
xi) MOHD. FIROZ VS. STATE OF MADHYA PRADESH
reported in (2022) SCC ONLINE SC 480,
xii) IRAPPA SIDDAPPA MURGANNAVAR VS. STATE OF
KARNATAKA reported in (2022) 2 SCC 801,
xiii) LOCHAN SHRIVAS VS. STATE OF CHHATTISGARH
reported in 2021 SCC ONLINE SC 1249,
xiv) PANCHHI AND OTHERS VS. STATE OF U.P. reported in
(1998) 7 SCC 177,
Submissions of Shri V.M.Banakar, learned Addl. SPP
8. The medical evidence shows that the victim was
raped and killed. Though the case is based on circumstantial
evidence the witnesses to the circumstances of motive, last
seen together, extra judicial confession and the recovery
incriminating material at the instance of the accused stood
the test of cross-examination. The medical evidence, the
Forensic evidence and the evidence of official witnesses
corroborated the evidence of the witnesses to the aforesaid
circumstances. PW-1 has only stated that he has not seen
the accused and victim going towards photo studio. But he
has stated firmly that accused and deceased left together. It
was not his case at all that he had seen the accused and the
deceased near the photo studio. Therefore such stray
statement of PW-1 cannot be construed as his admission to
demolish his other evidence. The recovery of incriminating
articles from the house of the accused coupled with the other
evidence completed the chain of all circumstances pointing
only to the guilt of the accused. The inconsistencies, if any,
projected by the appellant's counsel are not material one and
do not destroy the core case of the prosecution. The trial
Court on appreciating all the facts and circumstances, gravity
and nature of the offence has rightly convicted and
sentenced the accused. The said order does not warrant
interference of this Court.
9. In support of his submission he relies on the
judgment of the Supreme Court in TARSEEM KUMAR VS.
DELHI ADMINISTRATION reported in 1994 SUPP (3)
SCC 367. He submits that the other judgments relied on by
the appellant's counsel are not applicable to the facts of the
case.
10. Having regard to the rival submissions and the
material on record, the points that arise for the consideration
of the Court are:
i) Whether the trial Court was justified in holding
that the charges against the accused for the
offences punishable under Sections 376 and 302
IPC were proved beyond reasonable doubt?
ii) Whether the impugned order of sentence is just
and proportionate?
Analysis
11. There is no dispute that victim Kalavathi was a
widow living with her brother PW-1 in Kadaklat village. It is
also not disputed that her dead body was found in the
premises of Pre-University College, Kadaklat on 22.10.2016
in the morning at about 10 a.m. It is also not disputed that
PWs-1 to 10 were the residents of Kadaklat village at the
time of the alleged offence.
12. There are no eye witnesses to the incident. The
case is based on the circumstantial evidence. The
circumstances relied on by the prosecution are:
i) that the victim and the accused were last seen
together and thereafter the victim was found
dead with homicidal injuries.
ii) The sexual intent was the motive for the murder.
iii) The extra judicial confession made by the
accused before PW7 regarding the commission of
the offence
iv) The recovery of the incriminating materials at the
instance of the accused
v) The medical evidence and the FSL evidence
vi) The evidence of police witnesses
Reg: Cause of death and injuries
13. The first question was whether the death was
homicidal one and before her death whether the victim was
subjected to rape. To prove that the prosecution relied on the
evidence of PW-18 who conducted the post mortem of the
dead body of the victim and issued the P.M. Report as per
Ex.P.32 and final opinion as per Ex.P.34. PW18 deposes
about she conducting the post mortem examination on the
dead body of the victim on the requisition of the police,
injuries found on the dead body and issuing the PM report as
per Ex.P.32 on noting the injuries with her opinion. She also
speaks to issuance of Ex.P.34 the opinion on examining
MO10 the weapon of offence and final opinion as per Ex.P.35
on perusing the RFSL report.
14. The relevant injuries spoken to by PW-18 and
found in Ex.P.32 are as follows:-
"1. Face is crushed. Facial bones are fractured
2. Laceration measuring 4X4 cm. Bone deep
is seen chin
3. Laceration measuring 8cm X 4cm Is seen
over bone 2 cm behind right ear.
4. Multiple abrasions of varying sizes are seen over
the face
5. Multiple contusions measuring 1 x 1 cm are
seen over both knee joints
6. External genitalia: laceration measuring in
3 cm X 1 cm X soft tissue deep is seen over
right side
Labia majora is contused.
On Internal examination
Cranium and spinal Canal
Scalp shows blood exteravasition
Skull comminuted fracture of skull is seen with
multiple fracture lines base of skull is fractured.
Brain
Sub dural sub arachnoid hemorrhages are seen
all over.
Trorax
Multiple ribs are fractured on left side
Lungs Rt -Intact
Left Lacerated, contused at places"
15. As per her opinion death was due to shock as a
result of crush injury sustained to head by blunt force impact
i.e. due to injury shown in the PM report. She also deposed
that the injury to external genitalia is suggestive of forcible
sexual intercourse on the victim immediately prior to her
death and all the injuries were anti mortem in nature. The
only suggestion to PW18 was that such injuries could be
caused if a person fall from height on a hard surface which
the witness denied. It is material note that in the evidence
of other witnesses no such suggestion of accidental injuries
was put forth. So far as the act of rape it was only
suggested that in all cases of intercourse there will be
discharge of semen which the witness denied. The medical
evidence coupled with the other evidence which is discussed
in later part of this judgment consistently shows that the
death was homicidal one and the victim was subjected to
rape before the death.
Reg: Last seen circumstance
16. To prove this circumstance the prosecution relies
on the evidence of PW1, 5, 8, and 9. PW1 is the complainant
and the younger brother of the deceased. In the complaint
as well as in his evidence he deposes that the accused picked
up the victim from his house on 21.10.2016 at 9.00 pm in
the guise of getting her photograph for the purpose of
applying to the Janata sites. He further deposed that since
his sister did not return home till 10.00 pm himself and his
wife went searching for the victim and she was not found and
even went to the house of the accused to find out and he was
also not found in his house, ultimately, on the next morning
at 11.00 am, the dead body of his sister was found in the
compound of Government PU college of their village. He
deposes that there were grievous injuries on the face and
head of the body, they found dragging marks, broken bangle
pieces, blood stained footwear and the innerwear of his
sister. He also deposes that he came to know through PW-5,
the photographer that accused got the photographs of his
sister taken and paid the money. PW-1 further deposed that
the spot mahazar Ex.P.5 was drawn in his presence and
during such mahazar M.Os.6 and 9 to 12, the bangles,
broken pieces of bangles, the stone, the slippers and nicker
found at the scene of offence were seized. He also identifies
M.Os.1 to 5, the saree, blouse, petticoat, nose ring and ear
rings and gundugadige of his sister.
17. The accused does not dispute that the victim was
living with PW-1. Therefore, he is a probable and natural
witness to say that at 9 p.m. his sister left the home with the
accused. Picking up a stray sentence that he did not see the
accused and the victim going to photo studio, it was
contended that he is not a witness for the last seen together
theory. It is not at all the case of PW-1 that he had seen
them going into the studio together. His case is that they
left saying that they are going to the studio. Therefore, such
sentence does not amount to any admission to impeach his
evidence with regard to the last seen together theory.
18. Similarly his statement that he does not know
what is written in the complaint itself will not destroy his
entire evidence as he says he does not know reading and
writing Kannada and he got written the complaint through
PW-12. In the chief-examination itself he states that PW-12
wrote the complaint to his narration and read over the same.
When he does not know reading and writing Kannada, his
evidence that he cannot read that and say what is written in
that does not create any doubt about the contents of Ex.P.1.
Moreover, there is no variation or inconsistency in the ocular
evidence and the narration in the complaint. Therefore, that
contention as rightly held by the trial Court deserves no
merit.
19. The other contention is that why PW-1 did not
enquire the accused on that day and file the complaint. He
has stated in his chief-examination itself that when he did
not find his sister, he went to the house of the accused after
10 p.m. but he was not found in the house. In the cross-
examination he states that since on searching for his sister
during night till 1 a.m., he could not file the complaint during
the night hours. Therefore, those contentions also do not
survive.
20. PW-5 is the next witness to the last seen theory.
He deposed about the accused and victim coming to his
photo studio on 21.10.2016 between 9 to 9.30 p.m. and
getting Ex.P.13 the photographs of the victim saying that
they are required to apply for Janatha house, paying Rs.50/-
to him, next day on learning about dead body of a woman
lying in the college, he going and finding that the dead body
was of the woman whose photograph he had taken. He also
deposes that he came to know that the accused had raped
and murdered her and that he had produced the bill Ex.P.10
before the police during the enquiry.
21. The evidence of PW-5 was challenged on the
ground that Ex.P.10 is the original bill which is supposed to
be with the accused or the victim, therefore, his evidence is
not acceptable. According to the prosecution on the basis of
the voluntary statement of the accused, the photographs of
the victim as per M.O.13 and M.Os.16 and 17 his blood
stained shirt and pant were recovered from his house under
the mahazar Ex.P.11 in the presence of pancha PW-6. The
said recovery circumstance is found acceptable which will be
discussed in the later part of this judgment.
22. The accused has no explanation where and how
M.O.13, the photographs of the victim were taken and how
they came into his custody. Therefore, there is no reason to
disbelieve the evidence of PW-5 that accused and victim
came to his studio for photographs and he snapped M.O.13,
the photographs.
23. Even the Hon'ble Supreme Court in the case of
ACHHAR SINGH VS. STATE OF HIMACHAL PRADESH
reported in AIR 2021 SC 3426 has taken judicial note of the
fact that on the part of the prosecution or the witnesses
there will be tendency of exaggeration in placing of evidence
and that is natural unless that goes to the core case of the
prosecution. It was held that there is marked difference
between an 'exaggerated version' and a 'false version', an
exaggerated statement contains both truth and falsity. It
was further held that to make a mountain out of a molehill,
the molehill shall have to exist primarily. Therefore, a Court
is duty bound to disseminate truth from falsehood, grain
from the chaff in case of exaggeration and consider if grain is
found.
24. In this case also in the similar passion if the
Investigation Officer got bill Ex.P.10 through PW-5 to lend
more assurance to his case that itself will not demolish the
evidence of PW-5. In the light of the circumstances
discussed above, a ring of truth can be found in the evidence
of PW-5 that accused and victim came to his studio on
21.10.2016 and they left together after 9.30 p.m.
25. PWs-8 and 9 who run hair cutting saloon in
Kadaklat village have cited as res gestae witnesses. PW-8
says that on 21.10.2016 at 9.45 p.m., he saw accused and
the victim passing in front of his shop and going towards the
college and later he came to know that the accused has
committed the murder of the victim. Similarly, PW-9 says
that on 21.10.2016 after closing his shop when he was
proceeding to his house on bicycle at 10.20 p.m., he found
the accused coming out from the PUC college gate in a hurry
and despite he enquiring the accused where he is going,
without replying the accused proceeded towards the house.
Both these witnesses say that later they came to know that
the accused has raped and murdered the victim.
26. Even assuming that these witnesses are the
chance witnesses or planted, the evidence of PWs-1 and 5 is
cogent and consistent to hold that the accused and the victim
were last seen together.
Reg: Extra judicial confession
27. According to the prosecution, after commission of
the offence the accused made extra judicial confession before
PW-7 regarding the commission of the offence. PW-7
deposes that himself and the accused are doing masonry
work in Kadaklat village and they are acquainted with each
other since last 20 to 30 years. He further deposes that on
21.10.2016 he was employed in the construction of a
building near Deccan Sales Corporation Factory, on that day
at 10.30 p.m. after completion of building curing work when
he was proceeding towards his house he met accused near
bus stand circle. He deposes that the accused was coming
from college side towards bus stand circle and he was panic
and his pant and shirt were stained with blood. On enquiry
the accused revealed that he committed rape of a woman by
name Kalavathi and murdered her crushing her head with a
stone in the college compound. He sought his help in the
matter. PW-7 further states that he told the accused that he
is a person eking out his livelihood in the masonry work and
he cannot help him in any manner. He says that next day at
12 noon he found the dead body in the college campus and
police have recorded his statement in that regard. He
identifies M.Os.15 and 16 the blood stained shirt and pant of
the accused.
28. In the entire cross-examination of PW-7 the
acquaintance of the accused with the witness since 20 to 30
years is not disputed. In the cross-examination he says that
on that day he was engaged in curing the house of one
Shridhar Navi with the water. Even the fact that he being a
mason and employed in the work of Shridhar Navi was not
disputed. The accused and PW-7 working together as mason
was also not disputed. Under the circumstances, having
regard to the acquaintance of PW-7 and the accused and
having regard to the fact that soon after the offence he came
across PW-7, in such a panic mind set the probability of the
accused revealing the incident and seeking help of PW-7 is
not unnatural. In such circumstance, it is quite probable for
the accused to seek the help of PW-7. Similarly PW-7 being
a man living on the means of his every day's work, he
denying any help to the accused is also not unnatural.
29. The only contention of the defence is that in the
natural course on the accused confessing before him, PW-7
should have informed PW-1 or the police. First of all in the
cross-examination of the witness it is not suggested that PW-
1 is known to PW-7. It is not questioned why he did not
inform PW-1 or the police. Since it is not elicited from PW-7
that he and PW-1 were acquainted with each other there is
no merit in the contention that he ought to have informed
PW-1.
30. Secondly, the very fact of PW-7 denying help to
the accused goes to show that he did not wish to get
entangled in such affairs of the accused. Therefore it is quite
natural for the person of that social background not to go
forward and get entangled in criminal case or with the police.
Since the evidence of PW-7 shows that accused and himself
were on mutual confidence and trust and the other facts and
circumstances stated above, the fact of accused making an
extra judicial confession before PW-7 was quite natural and
can be held to be proved beyond reasonable doubt.
Reg: Recovery of M.Os.13, 16 and 17
31. PW-20 the Investigation Officer states that on
23.10.2016 he arrested the accused and on his interrogation
he gave statement as per Ex.P.39 volunteering to produce
his blood stained clothes worn at the time of offence and the
photographs of the victims. He further states that the
accused led him and the panchas PWs-6 and CW-7 to his
house and produced M.Os.13 to 17. He further deposes that
he seized M.Os.13 to 17 under the mahazar Ex.P.11 in the
presence of the panchas and regarding the same the
photographs Exs.P.12 to 14 were taken.
32. To prove Ex.P.11 the seizure mahazar the
prosecution examined PW-6 the witness to seizure mahazar.
PW-6 a resident of Kadaklat village deposes that on
23.10.2016 at 10 a.m. police summoned him and CW-7 to
the police station for the purpose of seizure mahazar and in
their presence the accused confessed about the offence and
volunteered to produce the clothes worn by him at the time
of the offence and the photographs of the victim. He
deposes that then accused led them to his house and
produced M.Os.13, 16 and 17. He deposes that in the
presence of himself and CW-7 the Investigation Officer
packed, sealed and seized M.Os.13, 16 and 17 by drawing
the mahazar Ex.P.11. He also identifies Exs.P.12 to 14 the
photographs taken during the seizure mahazar.
33. Except the suggestion to him that he is deposing
falsely the defence counsel could not elicit anything to
disbelieve the evidence of PW-6. In the cross-examination
also PW-6 says that the accused had concealed M.Os.13, 16
and 17 in the first room of his house. PW-6 is the resident of
the village of the accused himself. Nothing was elicited to
show that he had any enmity with the accused. Under the
circumstances, it can be safely concluded that the recovery
of the photographs M.O.13, the bloodstained shirt and pant
of the accused as per Exs.P.16 and 17 were discovered and
seized at the instance of the accused.
Reg: Recovery of the belongings of the victim and
Expert's evidence
34. The Investigation Officer states that during the
spot mahazar he seized M.Os.6 and 9 to 12 namely bangles,
broken bangles pieces, stone, slippers and nicker found at
the scene of offence in the presence of PW-2 and CW-3 under
the mahazar Ex.P.5. He further deposes that the Woman
Police Constable who was deputed to escort the dead body
after post mortem examination brought and produced M.Os.1
to 5, 7 and 8, the articles found on the dead body and he
seized them under the mahazar Ex.P.9 in the presence of
pancha PW-3. PW-2 deposes on to the proceedings under
the mahazar Ex.P.5 and Ex.P.7 and seizure of M.Os.9 to 12
during the spot mahazar Ex.P.5 and stone used for the
commission of the offence. He further deposes that on
08.11.2016 at 4 p.m., after the police staff produced M.O.14
pubic hair and M.O.15 innerwear of the accused collected
during his medical examination, the Investigation Officer
seized the same in his presence under the mahazar Ex.P.7.
Except the suggestion that no mahazars were conducted and
articles were seized in his presence which he denied nothing
was elicited in his cross-examination to discredit his evidence
regarding the seizure.
35. Similarly, PW-3 deposes that a woman police
brought and produced the saree, blouse, petticoat, nose ring,
ear studs, bangles and other belongings of the victim which
were collected by the doctor after post mortem examination
and handed over the same to the police. He further deposes
that the Investigation Officer seized the same under the
mahazar Ex.P.9. He denies the suggestion that he had not
gone to the police station and no mahazar was drawn in his
presence. PWs-2 and 3 are from Kadaklat village and are
natural witnesses to the mahazar. Nothing was elicited in
their cross-examination to disbelieve the seizure of the
belongings of the victim.
36. PW-18 the doctor who conducted the Post
Mortem examination deposed that during the post mortem
examination, M.Os.1 to 8 were found on the dead body of the
victim. After post mortem examination she collected them.
In the cross-examination of PW-18 she collecting the
aforesaid material objects is not disputed. She also deposed
that on 03.08.2018 on the request of the Investigation
Officer she examined the stone M.O.10 and gave her report
saying that the injuries could be caused by such weapon.
37. PW-20, the Investigation Officer speaks about
the seizure of M.Os.13 to 17 from the house of the accused
under the mahazar Ex.P.11. Out of them, M.O.13, the
photographs of the victim are very material. The accused did
not explain how those photographs came into his custody.
The said evidence of PW-20 regarding the seizure of M.O.13
to 17 under the mahazar Ex.P.11 was corroborated by the
evidence of PW-6. His evidence with regard to the seizure of
M.Os.6 and 9 to 12 including the weapon of offence at the
spot during the spot mahazar Ex.P.5 was corroborated by the
evidence of PW-2 the panch witness. His evidence regarding
the seizure of M.Os.14 and 15 the pubic hair and the
innerwear of the accused collected during medical
examination under Ex.P.7 was corroborated by the evidence
of PW-2 the panch witness. Further he deposes that on
14.11.2013 CW-21 produced before him M.Os.1 to 8 and 13
to 23 collected by the doctor during post mortem
examination and he seized them under the mahazar Ex.P.9.
The said evidence was corroborated by the evidence of PW-3
the panch witness.
38. PW-20 further deposes that he sent M.Os.1 to 9,
16 and 19 for chemical analysis to the RFSL, Belagavi and
Ex.P.36 is the RFSL received by him after filing the charge-
sheet. PW-19, the then Scientific Officer, RFSL, Belagavi,
deposes that M.Os.1 to 8, 9 to 16, 23, 25 and 26 were sent
to her for chemical analysis and on examining them she gave
the report as per Ex.P.37. She also deposes that the blood
found on those articles belonged to 'A' group. Except the
suggestion that if the dust and air is mixed with the blood so
collected the group of the blood cannot be diagnosed
accurately which she denied, nothing worth was elicited to
show that the said articles were examined and on those
articles 'A' group blood was found.
39. The articles sent in Ex.P.36 were the bangles,
stone, slippers, nicker, saree, blouse, petticoat, nose stud,
gundugadige (shivalinga pendent) and blood of the victim
and the pant, shirt and underwear of the accused. The
report further indicates the blood sent for analysis belonged
to 'A' group. Thus, it becomes clear that the blood group of
the victim was 'A'. The report and the evidence of PW-18
further shows that on the belongings of the accused and the
deceased 'A' blood group was found. The accused had to
explain how the blood of the victim was found on his
belongings which he failed to explain. Therefore such
circumstance also connects the accused to the crime.
Reg: Motive
40. According to the prosecution, the motive for the
commission of the offence was the sexual intent of the
accused. Though there are no eye-witnesses to the incident,
it is already observed that the medical evidence conclusively
shows that the victim was subjected to rape before the
commission of murder. That was further corroborated by the
evidence adduced regarding the extra judicial confession.
Therefore, the motive circumstance is also proved. The
above analysis of the case goes to show that the prosecution
proved beyond reasonable doubt the circumstance of motive,
the accused and victim were last seen together, the recovery
of the incriminating articles, extra judicial confession.
41. Though the learned counsel for the appellant
relied on host of the judgments referred to above, the sum
and substance of the ratio of those judgments is that in a
case based on circumstantial evidence, the circumstances
concerned must and should be established and not may be
established. It was further held that the chain of evidence
regarding the circumstances should be so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused it was held that the
evidence shall lend to the only hypothesis of the guilt of the
accused and nothing else.
42. The requirement of proof of circumstantial
evidence was summed up in the larger bench judgment in
SHAILENDRA RAJDEV PASVAN's case referred to supra.
In that judgment, it was held that the conviction had to be
recorded only in case all the links of the chain are complete
pointing to the guilt of the accused and unless each link
connect together to form a chain, that may suggest suspicion
but the same in itself cannot take place of the proof and
sufficient to convict the accused.
43. So far as extra judicial confession it was held that
the same shall be corroborated by the other evidence on
record. So far as last seen theory it was held that the
evidence of accused and victim last seen together should be
proximate to the time of the death. In this case, the death is
proximate to the circumstantial evidence of last seen
together. It was for the accused to explain after they left the
house of PW-1 and studio of PW-5 where he parted the way
from the victim and why he was not found in the village
thereafter. He failed to do that.
44. The above discussion show that the evidence of
extra judicial confession was corroborated by the other
evidence on record. Therefore, the judgments relied on by
the learned counsel for the appellant cannot be justifiably
applied to the facts of the present case. The trial Court
appreciating the aforesaid facts and circumstances and the
material on record in a sound manner held the accused guilty
of the charges. The same does not call for the interference
of this Court.
Reg: Sentence
45. By the impugned order the trial Court has
sentenced the accused for the offence under Section 376 IPC
to life imprisonment and fine of Rs.1 lakh and for the offence
punishable under Section 302 IPC sentenced him to death.
46. Learned counsel for the accused/appellant
contends that the case does not fall under the category of
rarest of rare cases. He further submits having regard to the
age of the accused and that he has no history of past
conviction or criminal antecedents the imposition of death
penalty is not sustainable.
47. Though he relied on several judgments on the
point, even those judgments are based on the judgment of
the Constitution Bench of the Hon'ble Supreme Court in
BACHAN SINGH VS. STATE OF PUNJAB reported in 1980
(2) SCC 684. The trial Court also refers to the said
judgment and the judgment of the Hon'ble Supreme Court in
MACHHI SINGH VS. STATE OF PUNJAB reported in AIR
1983 SC 957.
48. The Hon'ble Supreme Court in another judgment
in the case of PAPPU VS. STATE OF UTTAR PRADESH
reported in 2022 SCC ONLINE SC 176 considered the
question of imposition of death penalty. What are the
aggravating circumstances and mitigating circumstances was
culled out in paragraph 159 of the judgment in Pappu's case
referring to the judgment in Bachan Singh and Machhi
Singh's case as follows:
"159. In Shankar Kisanrao Khade (supra), after survey of
a wide variety of cases and pointing out the requirement of
applying 'crime test', 'criminal test' and 'rarest of rare test',
this Court recounted, with reference to previous decisions,
the aggravating circumstances (crime test) and the
mitigating circumstances (criminal test) as follows: -
"49. In Bachan Singh and Machhi Singh cases, this
Court laid down various principles for awarding sentence:
(Rajendra Pralhadrao case, SCC pp. 47-48, para 33)
''Aggravating circumstances -- (Crime test)
(1) The offences relating to the commission of
heinous crimes like murder, rape, armed dacoity,
kidnapping, etc. by the accused with a prior record
of conviction for capital felony or offences
committed by the person having a substantial
history of serious assaults and criminal
convictions.
(2) The offence was committed while the
offender was engaged in the commission of
another serious offence.
(3) The offence was committed with the intention
to create a fear psychosis in the public at large and
was committed in a public place by a weapon or
device which clearly could be hazardous to the life of
more than one person.
(4) The offence of murder was committed for
ransom or like offences to receive money or
monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for
want only while involving inhumane treatment
and torture to the victim.
(7) The offence was committed by a person while
in lawful custody.
(8) The murder or the offence was committed to
prevent a person lawfully carrying out his duty like
arrest or custody in a place of lawful confinement of
himself or another. For instance, murder is of a
person who had acted in lawful discharge of his duty
under Section 43 of the Code of Criminal Procedure.
(9) When the crime is enormous in proportion like
making an attempt of murder of the entire family or
members of a particular community.
(10) When the victim is innocent, helpless or a
person relies upon the trust of relationship and
social norms, like a child, helpless woman, a
daughter or a niece staying with a father/uncle and
is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive
which evidences total depravity and meanness.
(12) When there is a cold-blooded murder without
provocation.
(13) The crime is committed so brutally that it
pricks or shocks not only the judicial conscience but
even the conscience of the society.
Mitigating circumstances -- (Criminal test)
(1) The manner and circumstances in and under
which the offence was committed, for example,
extreme mental or emotional disturbance or extreme
provocation in contradistinction to all these situations
in normal course.
(2) The age of the accused is a relevant
consideration but not a determinative factor by
itself.
(3) The chances of the accused of not
indulging in commission of the crime again and
the probability of the accused being reformed
and rehabilitated.
(4) The condition of the accused shows that he
was mentally defective and the defect impaired his
capacity to appreciate the circumstances of his
criminal conduct.
(5) The circumstances which, in normal
course of life, would render such a behaviour
possible and could have the effect of giving rise to
mental imbalance in that given situation like
persistent harassment or, in fact, leading to such a
peak of human behaviour that, in the facts and
circumstances of the case, the accused believed that
he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of
evidence is of the view that the crime was not
committed in a preordained manner and that the
death resulted in the course of commission of
another crime and that there was a possibility of it
being construed as consequences to the commission
of the primary crime.
(7) Where it is absolutely unsafe to rely
upon the testimony of a sole eyewitness
though the prosecution has brought home the
guilt of the accused.'"
(Emphasis supplied)
49. In the light of the above guidelines, this Court
has to examine whether the case on hand falls in the
category of rarest of rare cases and what are the aggravating
and mitigating circumstances in considering the imposition of
punishment.
50. As per the Post Mortem report Ex.P.32 at the
time of the commission of the offence the victim was aged 45
years. As per the charge-sheet and the other material on
record the accused was aged 31 years. Thus the accused
was 14 years younger to the victim. Victim was a widow.
The accused taking advantage of the condition of the victim
and her innocence concealing his sexual intent induced her to
accompany him in the guise of getting her allotted Janatha
house and to get the photographs for that purpose. In all
circumstances, the victim would not have thought that the
accused who is 14 years younger to her and her villager had
a sexual intent against her. Trust is the inherent character of
the human being. He has exploited her innocence beyond
the expectation of a normal human being.
51. In considering whether the crime is rarest
amongst the rare the Court has to examine the way in which
the crime is executed. The medical evidence shows that
during the course of sexual assault accused caused laceration
measuring 3 cm X 1 cm x soft tissue deep seen over right
side and libia was contused. The medical evidence further
shows that the victim had struggled a lot in resisting the
accused which is evident from the injuries found on her, knee
joints and abrasions on the body.
52. After quenching his sexual thirst he did not spare
the victim. When she resisted him he gone to the extent of
crushing her head with a stone in a barbaric manner which is
evident from external injury Nos.1 to 3 and the internal
injuries in the skull and brain. Not being satisfied with such
assault he dragged the dead body for about 50 ft. The act of
accused was outrageous involving inhuman treatment and
torture to the innocent and helpless victim who relied upon
his trust and social norms.
53. The offence committed by the accused for a
motive which evidences total depravity and meanness. The
accused was close to the age of son of the victim. He failed
to visualize his mother or elder sister in the victim.
Therefore, the act committed by the accused is covered in
the test at Sl.Nos.10 to 13 elicited in paragraph 49 of the
BACHAN SINGH'S case.
54. The mitigating circumstance is that the accused
had no other criminal antecedents and he was aged 31 at the
time of commission of the offence. He is in judicial custody
since 23.10.2016. There are no reports that during his
custodial period now he has involved in any misconduct.
55. However, in paragraph 164 of the judgment in
Pappu's case referred to supra the Hon'ble Supreme Court
has held as follows:
"164. It could readily be seen that while this
Court has found it justified to have capital punishment
on the statute to serve as deterrent as also in due
response to the society's call for appropriate
punishment in appropriate cases but at the same time,
the principles of penology have evolved to balance
the other obligations of the society, i.e., of
preserving the human life, be it of accused,
unless termination thereof is inevitable and is to
serve the other societal causes and collective
conscience of society. This has led to the evolution of
'rarest of rare test' and then, its appropriate operation
with reference to 'crime test' and 'criminal test'. The
delicate balance expected of the judicial process has
also led to another mid-way approach, in
curtailing the rights of remission or premature
release while awarding imprisonment for life,
particularly when dealing with crimes of heinous
nature like the present one."
(Emphasis supplied)
56. Considering such aspects, in that case also
though it was held the act of the accused was brutal, shows
depravity to the victim, shocks conscience of the society,
having regard to the social background, age of the accused
and his conduct post conviction stage it was held that it is
unsafe to treat the case as the one falling under rarest of
rare case category. However, the death sentence was
commuted to imprisonment for life without remission for a
period of thirty years.
57. Considering the overall circumstances of the case
discussed above and the judgment in Pappu's case interest
of justice would be met by modifying the death sentence
accordingly. Hence, the following:
ORDER
i) Crl.A.No.100271/2019 is partly allowed,
ii) The impugned order of conviction for the offences
under Section 376 and 302 IPC is hereby
confirmed. The impugned order of sentence for
the offence under Section 376 IPC is confirmed.
iii) The impugned order sentencing the accused to
the death is modified as follows:
a) The death sentence awarded to the
appellant/accused for the offence under
Section 302 IPC is commuted into that of
imprisonment for life, with a stipulation
that appellant shall not be entitled to
premature release or remission before
undergoing actual imprisonment for a
period of 30 years.
b) The order of the trial Court with regard to
set off, disposal of the properties and
compensation under Section 357 (A)
Cr.P.C. is maintained.
c) Criminal Reference No.100003/2019 is
disposed of in terms of the above order.
d) The trial Court shall issue modified
conviction warrant accordingly.
[Sd/-]
JUDGE
[Sd/-]
JUDGE
Jm/-
