Karnataka High Court
State Of Karnataka vs Prashant Lingabasangouda Patil on 13 December, 2023
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CRL.A No. 100219 of 2021
C/W CRL.RC No. 100002 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100219 OF 2021 (C)
C/W
CRIMINAL REFERRED CASE NO. 100002 OF 2021
IN CRIMINAL APPEAL NO 100219/2021
BETWEEN:
PRASHANT S/O. LINGANAGOUDA PATIL,
AGE: 24 YEARS, OCC: GOUNDI WORK,
R/O: HULLUR TALUK: RON,
DISTRICT: GADAG-582209.
...APPELLANT
(BY SRI. LINGESH V. KATTEMANE, AMICUS CURIAE)
AND:
THE STATE OF KARNATAKA,
RON POLICE STATION REPRESENTED BY
Digitally signed
by
SHIVAKUMAR
ADDL.SPP, HIGH COURT BUILDINGS,
HIREMATH
Date:
DHARWAD-580011.
2024.01.05
15:21:37 +0530
...RESPONDENT
(BY SRI. M.B. GUNDWADE, ADDL.SPP)
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF THE
CRIMINAL PROCEDURE CODE 1973, PRAYING TO SET ASIDE THE
CONVICTION JUDGMENT PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, GADAG, IN S.C. NO. 39/2015 DATED 18TH
FEBRUARY 2021, OFFENCES UNDER SECTION 302, 201 OF I.P.C.
AND ACQUIT THE APPELLANT FROM THE CHARGES LEVELED
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CRL.A No. 100219 of 2021
C/W CRL.RC No. 100002 of 2021
AGAINST HIM, BY ALLOWING THIS APPEAL IN THE INTEREST OF
JUSTICE AND EQUITY.
IN CRIMINAL REFERENCE CASE NO. 100002/2021:
BETWEEN:
THE STATE OF KARNATAKA,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD,
REPRESENTED BY RON POLICE STATION, GADAG.
...APPELLANT
(BY SRI. M.B. GUNDWADE, ADDL.SPP)
AND:
PRASHANT S/O. LINGANAGOUDA PATIL,
AGE: 24 YEARS, OCC: GOUNDI WORK,
R/O: HULLUR TALUK: RON,
DISTRICT: GADAG-582209.
...RESPONDENT
(BY SRI. LINGESH V. KATTEMANE, ADVOCATE)
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366 OF CR.P.C., FOR CONFIRMATION OF
DEATH SENTENCE AWARDED TO ACCUSED PRASHANT S/O.
LINGANAGOUDA PATIL, AGE: 24 YEARS, OCC: GOUNDI WORK,R/O:
HULLUR TALUK: RON, DISTRICT: GADAG-582209. THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, GADAG, HAS PASSED JUDGMENT
OF CONVICTION AND SENTENCE DATED 18.02.2021 PASSED IN SC
NO.39/2015.
THIS CRIMINAL APPEAL AND CRIMINAL REFERENCE CASE
COMING ON FOR HEARING ON 22.09.2023 AND THE SAME
HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, RAMACHANDRA D. HUDDAR, J., PASSED
THE FOLLOWING:
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CRL.A No. 100219 of 2021
C/W CRL.RC No. 100002 of 2021
JUDGEMENT
The above captioned reference case is submitted by
the Principal District and Sessions Judge, Gadag, for the
confirmation of death sentence as per Section 366 of Code
of Criminal Procedure, 1973 (hereinafter referred to as
'Cr.P.C.', for brevity). The accused who was sentenced to
capital punishment by the Sessions Court has also
preferred the above captioned Criminal Appeal challenging
the capital punishment imposed on him by the said Court
vide judgment dated 18.02.2021 passed in S.C.
No.39/2015.
2. For the purpose of convenience parties to these
reference and appeal are referred to as per their rank
before the Trial Court.
3. That accused/appellant was prosecuted before
the Principal District and Sessions Judge, Gadag in S.C.
No.39/2015 for the offences punishable under Section
363, 302 & 201 of Indian Penal Code, 1860 (hereinafter
referred to as the 'IPC', for brevity). The learned Trial
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Court as per judgment dated 18.02.2021 convicted and
sentenced the accused for the aforesaid offences and
sentenced him as under:
ORDER ON SENTENCE
"Accused produced from custody. Accused
Prashant @ Prashantgouda Patil, aged:24 years,Occ:
driver/mason R/o Hullur village of Ron Taluk is sentenced
with death penalty "THAT HE BE HANGED BY THE NECK
TILL HE IS DEAD" and also sentenced to pay fine of
Rs.5000/-IDSI for 1 year.
Further, accused is convicted and sentenced to
undergo imprisonment for 3 years for the offence
punishable U/Sec. 201 of IPC and fine of Rs.2000/-IDSI
for 2 years.
Further it is ordered that the sentence of death
penalty shall be carried out subject to the confirmation by
Hon'ble High Court of Karnataka U/Sec. 366 of Cr.P.C.
Issue conviction warrant accordingly.
M.O. 1 and 2 shall be destroyed after the appeal
period is over.
Provide free copy of judgment to accused,
forthwith."
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4. The State has prayed to confirm the capital
punishment and whereas accused/appellant has prayed to
set aside the impugned judgment of conviction.
The facts leading to the aforesaid conviction and
sentence are as under:
5. Complainant by name Shahnaz @ Sridevi
Prashant Patil lodged a complaint on 11.04.2015 by
appearing before the Police Sub Inspector, Ron Police
Station, alleging that about three years back prior to filing
of the complaint she married Prashant S/o. Linganagouda
Patil. It was a love marriage. In the said wedlock, a
female child by name Ankita was born and she was about
1½ year old when the complaint was filed. For about four
months prior to filing of the complaint she was residing in
a rented house owned by Laxmavva Gulaguli in Ron town
near Shivapete Siddarudh Math. As their marriage was a
love marriage, her parents and parents of her husband did
not co-operate with them. It is stated that, for some
months prior to filing of the complaint, her husband
Prashant without any reason used to quarrel with her. He
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did not look after her and provide any basic necessities for
her. Therefore, she filed a complaint against her husband
in the Gadag Court. But, her husband used to pressurize
her to take back the said complaint and used to give
threat that, if complaint was not withdrawn he would do
something to the child Ankita.
6. It is alleged by the complainant that, on
06.04.2015 at about 6.30 a.m., in the morning when she
returned after attending her nature's call, her husband
was trying to take away the child Ankita. The complainant
demanded to give back Ankita. But her husband refused
and gave a threat stating that, as she had not withdrawn
the complaint against him, he was going to take the child
with him. By saying so, he forcibly snatched the child
from the hands of the complainant though there was a
request by the complainant to breastfeed the child, the
accused went away forcibly with the child.
7. It is alleged that complainant was under the
impression that, her husband might have taken the child
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to his relative's house at Hullur in Shirahatti Taluk.
Personally she went and searched for her child to the said
villages but, could not trace her child Ankita. As she could
not trace her child, she approached the Women's
Organisation called as Badami Kamdhenu Mahila Vakkuta
of which one Shanta W/o. Ramesh Angadi R/o. Sullikeri
was the President of said Vakkuta and also she
approached the member of the said Vakkuta by name Mala
W/o. Niranjan Keriholad. All went to the police station
together on 11.04.2015 and lodged a complaint as per
Ex.P.6 against her husband. Her complaint was registered
in Crime No.32/2015 initially for the offence under Section
363 of IPC and the criminal law was set in motion.
8. PW.13 on registering the complaint prepared
the First Information Report and deputed staff for tracing
the accused. He commenced the investigation. On
12.04.2015 at 9.00 a.m., accused was apprehended at
Hullur village. On interrogation, he gave his voluntary
statement. As per his voluntary statement, it was
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revealed that, he took his daughter Ankita towards the
hilly area of Kalkaleshwar village, killed her and burnt her
clothes. He said that if the police would accompany him,
he would show the said place.
9. Because of his confession, it was confirmed
that, accused had committed the murder of the child
Ankita. Therefore, a requisition was submitted to insert the
provisions of Sections 201 and 302 of IPC.
10. The Investigating Agency after completion of
investigation filed charge sheet against the accused for the
offences under Sections 363, 201 and 302 of IPC.
11. To prove the case against accused, the
prosecution in all examined 17 witnesses as PW.1 to
PW.17 and got marked Ex.P.1 to P.26 with signatures
thereon. So also M.O. Nos.1 and 2 were marked on behalf
of the defence, Ex.D.1 to D.4 were marked.
12. The learned Trial Court on evaluation of the
evidence and on perusal of the documents found the
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accused guilty of the offence punishable under Sections
201 and 302 of IPC and acquitted the accused for the
offence punishable under Section 363 of IPC. Therefore
the accused has preferred the appeal challenging his
conviction and sentence imposing capital punishment on
him and the State has sought confirmation of the capital
punishment.
13. It is argued by the learned counsel for the
appellant/accused being Amicus Curiae appointed by the
Court that, first of all the facts and circumstances of this
case do not come under the purview of "rarest of rare
cases". Therefore he submits that, the very imposition of
death sentence is against the principles of natural justice.
On the same day of conviction the learned Trial Judge has
passed the sentence without affording any opportunity to
submit his say regarding sentence which is opposed to the
principles of natural justice. Therefore, he prays to allow
the appeal by acquitting the accused.
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14. As against this submission the learned
Additional State Public Prosecutor Shri. M. B. Gundawade
appearing for State forcefully submits that, the learned
Trial Court by considering the evidence has rightly come to
the conclusion that, accused has committed heinous
offence of murder of his own child in a diabolic manner.
No interference is required so as to interfere with the
judgment of conviction and order of sentence passed by
the Trial Court. It is submitted that, the case is based
upon circumstantial evidence, the circumstances brought
on record establish the link of taking away the child by the
accused on the guise that complainant (his wife) has not
withdrawn the complaint against him. It is submitted that,
there was a threat by the accused that if the complaint
was not withdrawn, he would do something to the child.
This conduct of the accused itself goes to establish about
his motive in the commission of the crime. Now, there
cannot be any leniency in imposing the sentence and the
sentence imposed by the Trial Court is proper and
adequate. It is submitted that, the conduct of the accused
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in killing his own child definitely attracts the doctrine of
"rarest of rare cases". Therefore, he prayed to dismiss the
appeal and confirm the death reference.
15. We have given our anxious consideration to the
arguments of both the side. Perused the records.
16. The points that would arise for our
consideration are:
i) Whether the judgment of conviction and
order of sentence passed by the Trial Court
suffers from perversity and requires
interference by this Court?
ii) Whether the conduct of the accused in
causing murder of his child attracts the
doctrine of rarest of rare cases?
17. Before adverting to the other aspects of the
case, let us examine the admitted facts between both
sides.
18. Complainant/PW.6 Smt. Shahnaz @ Sridevi is
the wife of accused. Their marriage is a love marriage. In
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their wedlock, a daughter by name Ayesha @ Ankita was
born who was 1 ½ year old at the time of incident. At the
time of filing the complaint, complainant and accused were
residing in a rented house near Siddarudh Math belonging
to one Laxmavva/PW.4. There was a quarrel between
complainant and accused therefore, the complainant filed
a petition under the provisions of the Protection of Women
from Domestic Violence Act, 2005 seeking maintenance
before the Civil Court, Gadag. There was pressure by the
accused on the complainant to withdraw the petitions filed
against him. These are all the admitted facts which need
not be proved.
19. Before discussing the evidence and appreciate
the same in the case of present nature, it is just and
proper to ascertain about the homicidal death of deceased
Ayesha @ Ankita (hereinafter referred as 'deceased child').
20. To prove the said fact of homicidal death of
deceased child, prosecution relied upon the evidence of
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PW.12 Dr. Sangamesh Shivanappa Bankad and PW.15 Dr.
Mallikarjungouda Basangouda Patil.
21. PW.12 in his evidence has stated that, on
12.04.2015 he being the doctor at Gajendragad
Government Hospital at the relevant time was taken by
DSP Naragund to the place where the said deceased child
was killed. He noticed the presence of bones and hair at
the said place and through CPI, Ron Police Station the said
articles were submitted to Forensic Experts for the purpose
of chemical examination and DNA test. This fact of PW.12
visiting the scene of offence and noticing Bones and hair is
not specifically denied by the defence.
22. PW.15 deposed before the Court about drawing
up of blood for the purpose of DNA test. Coupled with
that, the prosecution adduced the evidence of PW.6
complainant - the mother of the deceased child about
taking away of said child by the accused on 06.04.2015 at
about 6.30 a.m., thereafter the said child was not found
alive. Ex.P.3 is the blood collection panchanama. Ex.P.8
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and 9 are form Nos.1 and 2, Ex.P.10 is the birth
certificate, Ex.P.14 is the DNA form, Ex.P.16 is the seizure
panchanama, Ex.P.26 is the FSL report and Ex.P.21 is the
DNA form of accused. Likewise M.O. Nos.1 and 2 are the
burnt underwear and burnt shirt.
23. It is not the case of the defence that, the
deceased child is still alive. The DNA report and other
evidence brought on record do establish that, the said
bones and hair seized by the police belongs to the
deceased child. There is no denial of all these factual
features by the defence. Thus, the dead body was not
found but the bones and hairs were identified shown by
the accused at the place of killing his daughter. This
factual evidence proves that, the deceased child suffered
un-natural death and it was homicidal.
24. Merely because prosecution is able to establish
the homicidal death of the deceased child, it does not
mean that it was accused and accused alone who was
responsible in committing the crime against his own child.
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To ascertain the same, we have to assess both oral and
documentary evidence adduced by the prosecution.
25. As this case is based upon the circumstantial
evidence, it is the duty of the prosecution to prove the
chain of circumstances that, it was the accused who alone
murdered his own daughter.
26. So far as allegations made in the complaint are
concerned, it is specifically stated by the complainant
consistently that, on 06.04.2015 at about 6.15 a.m.
accused came to the house and took away the deceased
child by threatening the complainant - the mother of the
deceased child that, if she would not withdraw the
complaint, he would do something to the child and
thereafter the said child was not seen alive. It is the case
of the prosecution that, as the complainant did not heed to
the force of the accused to withdraw the complaint, he
took away the deceased child and murdered her. It is
further case of the prosecution that, to destroy the
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evidence, he burnt the clothes of the child. The nature of
murder was strangulation of child's neck by the accused.
27. The relationship between the complainant and
the accused is not disputed. So also the death of the
deceased child. It is very much clear that, when the said
child was alive, it was under the custody of complainant
Shahnaz and she was the natural guardian of the child.
The relationship between the accused and the complainant
were not cordial because of filing of petitions against
accused by the complainant. Therefore the motive for the
crime as per the case of the prosecution is that, he was
forcing the complainant to withdraw the
complaints/petitions and as there was no proper response
from the complainant, he might have taken away the said
deceased child from the custody of the complainant to do
something to the said child. That means from the
evidence brought on record, the said child was found
missing from 06.04.2015. The complainant was under the
impression that, accused might have taken the said child
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to his parent's house or to his relative's house. It is her
evidence that, she went to those places but could not
trace her child alive. After due search, she lodged a
complaint on 11.04.2015 stating that, her child was
missing. Thereafter the investigation was taken up by the
Investigating Officer. During the course of investigation
the accused was arrested. On interrogation the accused
confessed about taking away of the deceased child,
strangling the neck of the child and killing her. The said
confession statement is marked as per Ex.P.19.
28. It is the case of the prosecution that, it was the
accused who led the Investigating officer, complainant-
PW.6 and other panchas i.e., PW.7-Channappagouda
Veerangouda Timmanagoudra and CW.5-Ramappa
Siddaramappa Koppad to the place where he killed the
said child.
29. PW.7 in categorical terms has stated that it was
the accused who took them to Kalakappana gudda in
Gajendragad village and showed the scene of offence
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where he had committed the murder of his child. He also
showed the bones, hair and red cloths of the deceased
child. The said dead body was decomposed. The police
seized the said articles. The cloths were marked at M.O.
Nos.1 and 2. The said clothes were wet. PW.7 was
examined to prove the drawing of the blood samples. But,
he turned hostile. Though lengthy cross examination was
directed to PW.7, nothing worth is elicited so as to
disbelieve his evidence in examination in chief. It is
suggested that, M.O. Nos.1 and 2 were not blood stained.
When there was strangulation, the question of staining of
blood to the said clothes of the deceased would not arise.
He denied all the suggestions directed to him.
30. The evidence of PW.7, the seizure pancha and
the evidence of PW.14 - Investigating Officer and seizure
of M.O. Nos.1 and 2, is one of the links to establish that,
from 06.04.2015 the said deceased child was found
missing and was not found alive. Only on 11.04.2015
when the complaint was filed, at the instance of accused
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there was recovery of M.O. Nos.1 and 2. That means
deceased child was murdered and her entire dead body
was not traced but only bones and hairs were shown by
the accused. It has come in the evidence that, the said
dead body might have been eaten by the wild animals.
Because of tracing only bones and hair, it can be stated
that, the dead body of the deceased child might have been
eaten by the wild animals. This possibility cannot be ruled
out.
31. So far as the oral evidence adduced by the
prosecution is concerned, PW.1-Budnesab Mulyal is pancha
to Ex.P.1. According to his evidence, as shown by the
complainant, the police conducted the panchanama of the
place from which accused took away his child. To that
effect, police took the photographs as per Ex.P.2. Though
this PW.1 is cross examined but, he has withstood the test
of cross examination. The evidence of PW.6 the
complainant/mother of the child and evidence of PW.1, do
establish about taking away of a child by the accused.
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32. PW.2-Meerasab Totaganti is pancha to Ex.P.3
under which the blood was drawn and stored by the doctor
at Government Hospital, Ron. The bone pieces, hair and
blood so seized were kept in carton box and were packed
in his presence. According to his evidence blood was
drawn in the open court in his presence. This fact so
stated by PW-2 is not properly denied by the defence
33. PW.3-Shanta Ramesh Angadi is the President of
Badami Kamdhenu Mahila Vakkuta. According to her
evidence, on 11.04.2015 at 3.00 p.m., complainant came
to her office. At that time herself and other members of
the said organisation were present and even CDPO was
also present. The complainant narrated the incident of
kidnapping of her child by her husband. Immediately this
witness and other office bearers along with the
complainant went to police Station at Ron at 4.30 p.m.,
and lodged the complaint. It is her further evidence that,
it was the accused who confessed about murdering of her
child before the police.
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34. From the evidence of this witness, it is very
much clear that, on 11.04.2015 the complainant informed
the said Women Organisation about taking away of her
child by the accused. To disbelieve her evidence except
the denial nothing is brought on record.
35. PW4-Laxmavva Gulaguli is the landlord of the
rented premises where the complainant was residing as
her tenant. One thing is clear from her evidence that
complainant resided in the rented premises owned by
PW.4. So far as other evidence is concerned, she has
been turned hostile.
36. PW.5-Nabisab Myageri the father of
complainant stated that it was accused who killed his
daughter by taking her towards Kalakappana gudda. On
perusal of his evidence, he is a hearsay witness to the
alleged incident. He also speaks about the filing of a
petition by the complainant seeking maintenance before
the JMFC Court. He has deposed ignorance about the
residence of his daughter after her marriage with accused.
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Thus, his evidence is to be accepted to the extent that, he
is the father of the complainant and came to know about
the death of daughter of the complainant.
37. PW.5 being the complainant deposed about
filing of complaint against accused. It is her evidence that,
her marriage with accused has taken place at Durga Devi
Temple, Bengaluru, about six years back prior to she
giving evidence. It was their love marriage. She deposed
that, as it was the love marriage, they came to Ron to her
parents house, they were not permitted to enter the house
of the parents of accused. Thereafter, again they went to
Bengaluru. After one year of marriage she became
pregnant. It is her evidence that, when she was six
months pregnant accused used to reside with her for one
week in a month and for remaining days of a month used
to go away. Beyond the contents of the complaints she
has stated about ill-treatment attributed by the accused
on her. Even she deposed that the friends of the accused
also used to ill-treat her. At that time, she was eight
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months nine days pregnant. She escaped and submitted a
complainant to the Deputy Commissioner. She was
shifted to "swadra centre". There she delivered a female
child on 01.09.2013 and named the child as Ayesha.
According to her evidence, accused used to travel with her
from her rented house owned by Laxmavva Gulaguli.
Once the accused took away her child in the morning at
6.30 am and brought back the child on the following day.
38. She further deposed that, on 06.04.2015
accused came to the house at 6.30 a.m., and picked up
her daughter. He gave a threat stating that, unless she
withdraws her complaint, he will not give the child. Though
she requested to give back the child as she wants to
breastfeed the child, but he did not give the child to her.
He took away the said child. The complainant waited for
two - three days with a hope that, her husband would
come back with the child. But he did not return. She
enquired the residents of Hullur village, whom she knew
and also enquired the grand father of accused. But she
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could not trace the whereabouts of her child. Then she
went to Badami Kamdhenu Mahila Vakkuta and submitted
a complaint. Thereafter the members of the said vakkuta
accompanied her to the Ron Police Station and there she
lodged a complaint as per Ex.P6.
39. It is her further evidence that, on the following
day of filing of the complaint, the police called her and told
that they will show the child. Even police came to the
house and enquired that from which place accused took
away the child. They conducted panchanama, snapped the
photographs.
40. Thereafter, she was taken by the police to
Kalakappana gudda area along with 2 panchas. Accused
was also there. There he showed the place stating that, it
was a place where he killed the child. She noticed the
presence of blood stains and there was smell. She also
noticed the presence of 4 small bone pieces and hair.
Though police searched for the skull of the child, they
could not trace her. The dead body was rotten and some
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wild animals might have eaten the dead body. She also
noticed the presence of half burnt elastic panty, black
color T-shirt at the said place, the same might have been
burnt by the accused to destroy the evidence. According
to her evidence all these material objects were seized by
the police for the purpose of investigation. They also took
the photograph as per Ex.P.7.
41. According to her evidence, it is the accused who
murdered his own child. She also speaks of giving birth to
a second female child by name Amulya. She speaks of
drawing blood for the purpose of DNA test. She has been
subjected to severe cross examination. She has denied all
the suggestions directed to her. She is consistent that at
6.30 a.m., on 06.04.2015 when she was away from the
house to attend her nature's call, accused came to the
house and took away her child. To that effect, immediately
she did not lodge the complaint. Thus, according to her
evidence, it was accused who had kidnapped her child and
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killed her. Though lengthy cross-examination is directed to
her, but she withstood the test of cross-examination.
42. PW.7-Channappagouda Timmanagoudar is
pancha to Ex.P.3 under which the blood of the accused
was drawn. He is also pancha to Ex.P.15 and P.16 under
which the spot panchanama and seizure panchanamas
were prepared as shown by the accused. M.O Nos.1 and 2
were seized in his presence. On perusal of cross
examination except the denial nothing is elicited from his
mouth so as to disbelieve his evidence spoken in the
examination-in-chief.
43. PW.8-Jagadish Pujar was a police official who
carried the seized articles to FSL. He has denied all the
suggestions directed to him.
44. PW.10-Mehaboobi Myageri is the mother of
complainant corroborated the evidence of PW.5 her
husband. PW.11-Marigouda Mudibasanagoudar was the
then Junior Engineer, PWD prepared the sketch of scene of
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offence as per Ex.P.18. Preparation of Ex.P.18, is not
disputed by the defence.
45. PW.12 Dr. Sangamesh Bankad was a doctor
who was taken to the scene of offence. He noticed the
presence of bones and hair at the said place. According to
his evidence, he collected the articles and packed them.
The CPI, Ron Police Station sent them for DNA test.
except the denial nothing is elicited from his mouth so as
to disbelieve his evidence spoken in the examination-in-
chief. Thus, from the evidence of this doctor, it is proved
by the prosecution that, it was PW.12 through whom the
said bones and hair were collected and subjected them for
DNA test.
46. PW.13-Druvaraj Patil was Investigating Officer
who conducted the part of investigation. PW.14-Ramakant
Hullur, the Investigating Officer and he filed charge sheet
against the accused. Both these witnesses have spoken
about their role of investigation throughout their evidence.
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The role of these Investigating Officers in investigation is
not denied by the defence.
47. PW.15-Dr.Malikarjunagouda Patil drew the
blood of complainant and accused in the presence of
panchas with due identification duly signed by both. The
factum of drawing blood for the purpose of DNA test is not
denied by the defence. PW.16-Venkatappa Naayak, DYSP,
has done part of investigation, so also PW.17-Siddappa
Beelagi. Both these witnesses have stated about
conducting part of investigation by them.
48. On overall reading of evidence of these
witnesses discussed herein above do demonstrate that,
the said child Ankita @ Ayesha died and she has suffered
homicidal death.
49. This case is purely based upon circumstantial
evidence. The documents marked in this case duly prove
taking away of deceased child from the house of the
complainant and recovery of bones and hairs of the child.
Because of the ill-will between himself and the
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complainant he took away the child. Accused did not
return the child, but killed her. The circumstances brought
on record clearly point at the accused that he is the
culprit. The following are the circumstances which can be
gathered from the evidence brought on record pointing at
the accused:
1. Complainant filed a complaint before the
JMFC seeking maintenance on the ground of
domestic violence by the accused.
2. There was pressure by the accused to
withdraw the said complaints/petitions filed by the
complainant against them.
3. There was threat to the complainant that
unless she withdraw the complaint, he will do
something to the child.
4. On 06.04.2015 in the morning hours
accused took away the child but has not returned.
Though there was request to give back the child by
the complainant to breastfeed it.
5. When he was taking away the child there
was a threat that unless the complaints or petitions
is withdrawn he will not return a child.
6. Complainant waited for three days,
approached the aforesaid centre, thereafter, lodged a
complaint.
7. Accused was arrested by the police and
on interrogation he confessed about committing
murder of the child.
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8. At the instance of the accused the bones
and hairs are recovered and sent for DNA test.
9. The report of the forensic laboratory
discloses that the deceased child Ankita was the
daughter of complainant and accused.
51. The aforesaid circumstances do suggest
involvement of accused in the commission of crime. In
the case of present nature, it is the duty of the
prosecution to establish the clear links that, it was
accused who had committed the aforesaid offence of
murdering his own child. The burden of proof is on the
prosecution. The evidence of these witnesses examined
before the Trial Court and the documentary evidence
marked by the prosecution do establish that the aforesaid
circumstances point finger at the accused in the
commission of the offence.
52. If Section 106 of the Indian Evidence Act, 1872
is applied, accused who carried the child with him should
disclose as to what happened to the child. If he fails to
discharge the burden, then adverse inference has to be
drawn against him. Here in this case also the burden of
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proof which was cast on the prosecution is properly
discharged. Whereas the onus of proof, cast on the
accused of offering proper explanation with regard to the
whereabouts of his child is not discharged, i.e., unless the
accused explains about what happened to his child when
he took away the said child from the possession of the
complainant. The circumstances narrated herein above
point finger at the accused that he is the real culprit.
Therefore if the entire evidence is considered, it can be
stated that, it is the accused and accused alone was
responsible for the murder of child of the complainant.
53. From the evidence brought on record by the
prosecution, it was the accused himself showed the place
where he killed his child and throwing the dead body. To
that effect in the presence of panchas police prepared the
panchanama as shown by the accused. Such a conduct of
the accused under the provisions of Section 8 of the
Indian Evidence Act, 1872 is admissible in the evidence,
irrespective of whether the statement made by the
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accused false within a purview of Section 27 or not of the
Indian Evidence Act, 1872.
54. In the judgment of Hon'ble Supreme Court of
India in between A. N. Venkatesh Vs. State of Karnataka1
decided on 08.08.2005 it is held in para 9 of the judgment
that,
"9. By virtue of Section 8 of the Evidence Act,
the conduct of the accused person is relevant, if such
conduct influences or is influenced by any fact in
issue or relevant fact. The evidence of the
circumstance, simpliciter, that the accused pointed
out to the police officer, the place where the dead
body of the kidnapped boy was found and on their
pointing out the body was exhumed, would be
admissible as conduct under Section 8 irrespective of
the fact whether the statement made by the accused
contemporaneously with or antecedent to such
conduct falls within the purview of Section 27 or not
as held by this Court in Prakash Chand Vs. State (AIR
1979 SC 400). Even if we hold that the disclosure
statement made by the accused appellants (Ex.P.15
and P.16) is not admissible under Section 27 of the
Evidence Act, still it is relevant under Section 8. The
(2005) 7 SCC 714
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evidence of the investigating officer and PWs.1, 2, 7
and PW.4 the spot mahazar witness that the accused
had taken them to the spot and pointed out the place
where the dead body was buried, is an admissible
piece of evidence under Section 8 as the conduct of
the accused. Presence of A-1 and A-2 at a place
where ransom demand was to be fulfilled and their
action of fleeing on spotting the police party is a
relevant circumstance and are admissible under
Section 8 of the Evidence Act."
55. In totality of the circumstances, we are of the
considered view that, the prosecution has proved beyond
all reasonable doubt the case for conviction under Section
302 of IPC and therefore, appeal in that regard is liable to
be rejected.
Sentencing of accused
As stated above accused was ordered to
undergo death sentence "That he be hanged by
the neck till he is dead" with other punishment
for the offence under Section 201 of IPC. To
impose the death sentence, it is the duty of the
Court to impose the same in "rarest of rare
cases". Simply because accused has committed
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the murder it cannot be stated that, he has to be
sentenced to death penalty.
57. Therefore the next question that, we are called
upon for consideration is whether the present case falls in
the category of rarest of rare cases, and as to whether on
the facts of the present case, the capital punishment
imposed on the appellant/accused deserves to be
maintained or not?
58. The Constitution Bench of the Hon'ble Supreme
Court of Indian in Bachan Singh Vs. State of Punjab2, has
held that "the normal rule is in a murder case the offender
shall be punished with sentence of imprisonment for life."
It is laid down as under:
"Attuned to the legislative policy delineated in
Sections 354(3) and 235(2), propositions (iv)(a) and
(v)(b) in Jagmohan [(1973) 1 SCC 20 : 1973
SCC(Cri) 169 : (1973) 2 SCR 541] shall have to be
recast and may be stated as below:
(1980) 2 SCC 684
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"(a) The normal rule is that the offence of
murder shall be punished with the sentence of life
imprisonment. The Court can depart from that rule
and impose the sentence of death only if there are
special reasons for doing so. Such reasons must be
recorded in writing before imposing the death
sentence.
(b) While considering the question of sentence
to be imposed for the offence of murder under
Section 302 of the Penal Code, the Court must have
regard to every relevant circumstances relating to
the crime as well as the criminal. If the Court finds,
but not otherwise, that the offence is of an
exceptionally depraved and heinous character and
constitutes, on account of its design and the manner
of its execution, a source of grave danger to the
society at large, the Court may impose the death
sentence."
59. It can thus be seen that, the Constitution Bench
held that, the normal rule is that, the offence of murder
shall be punished with the sentence of life imprisonment.
60. In Bachan Singh case (supra) in paragraph
No.2 the Hon'ble Apex Court has observed with regard to
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the aggravating circumstances as well as mitigating
circumstances.
61. Likewise, Machhi Singh and Others Vs. State of
Punjab3 the Hon'ble Apex Court laid down certain
propositions which are required to be taken into
consideration. It is observed as under:
"32. The reasons why the community as a
whole does not endorse the humanistic approach
reflected in "death sentence-in-no-case" doctrine are
not far to seek. In the first place, the very humanistic
edifice is constructed on the foundation of "reverence
for life" principle. When a member of the community
violates this very principle by killing another
member, the society may not feel itself bound by the
shackles of this doctrine. Secondly, it has to be
realized that every member of the community is able
to live with safety without his or her own life being
endangered because of the protective arm of the
community and on account of the rule of law
enforced by it. The very existence of the rule of law
and the fear of being brought to book operates as a
deterrent for those who have no scruples in killing
others if it suits their ends. Every member of the
(1983) 3 SCC 470
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community owes a debt to the community for this
protection. When ingratitude is shown instead of
gratitude by 'Killing' a member of the community
which protects the murderer himself from being
killed, or when the community feels that for the sake
of self preservation the killer has to be killed, the
community may well withdraw the protection by
sanctioning the death penalty. But the community
will not do so in every case. It may do so "(in rarest
of rare cases)" when its collective conscience 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. The community
may entrain such a sentiment when the crime is
viewed from the platform of the motive for, or the
manner of commission of the crime, or the anti-social
or abhorrent nature of the crime, such as for
instance:
I. Manner of Commission of Murder
33. 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. For instance,
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(i) When the house of the victim is set
aflame with the end in view to roast him alive
in the house.
(ii) When the victim is subjected to
inhuman acts of torture or cruelty in order to
bring about his or her death.
(iii)When the body of the victim is cut
into pieces or his body is dismembered in a
fiendish manner.
II Motive for Commission of murder
34. When the murder is committed for a motive
which evince total depravity and meanness. For
instance when (a) a hired assassin commits murder
for the sake of money or reward (2) a cold
blooded murder is committed with a deliberate
design in order to inherit property or to gain control
over property of a ward or a person under the control
of the murderer or vis-a-vis whom the murderer is in
a dominating position or in a position of trust. (c) a
murder is committed in the course for betrayal of the
motherland.
III. Anti Social or Socially abhorrent nature of
the crime
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35.(a) When murder of a Scheduled Caste or
minority community etc., is committed not for
personal reasons but in circumstances which arouse
social wrath. For instance when such a crime is
committed in order to terrorize such persons and
frighten them into fleeing from a place or in order to
deprive them of, or make them with a view to
reverse past injustices and in order to restore the
social balance.
IV. Magnitude of crime
36. 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.
V. Personality of victim of murder
37. When the victim of murder is (a) an
innocent child who could not have or has not
provided even an excuse, much less a provocation,
for murder (b) a helpless woman or a person
rendered helpless by old age or infirmity (c) when
the victim is a person vis-a vis whom the murderer is
in a position of domination or trust (d) when the
victim is a public figure generally loved and
respected by the community for the services
rendered by him and the murder is committed for
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political or similar reasons other than personal
reasons.
38. In this background the guidelines indicated
in Bachan Singh's case (supra) will have to be culled
out and applied to the facts of each individual case
where the question of imposing of death sentence
arises. The following propositions emerge from
Bachan Singh's case:
"(i) the extreme penalty of death
need not be inflicted except in gravest
cases of extreme culpability;
(ii) Before opting for the death
penalty the circumstances of the
'offender' also require to be taken into
consideration alongwith the
circumstances of the 'crime'.
(iii)Life imprisonment is the rule and
death sentence is an exception. In other
words death sentence must be imposed
only when life imprisonment appears to
be an altogether inadequate punishment
having regard to the relevant
circumstances of the crime, and provided,
and only provided, the option to impose
sentence of imprisonment for life cannot
be conscientiously exercised having
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regard to the nature and circumstances of
the crime and all the relevant
circumstances.
(iv) A balance sheet of aggravating
and mitigating circumstances has to be
drawn up and in doing so the mitigating
circumstances has to be accorded full
weightage and a just balance has to be
struck between the aggravating and the
mitigating circumstances before the
option is exercised.
39. In order to apply these guidelines inter-
alia the following questions may be asked and
answered:
(a) Is there something uncommon about the
crime which renders sentence of imprisonment for
life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such
that there is no alternative but to impose death
sentence even after according maximum weightage
to the mitigating circumstances which speak in
favour of the offender ?
40. If upon taking an overall global view of
all the circumstances in the light of the aforesaid
proposition and taking into account the answers to
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the questions posed hereinabove, the circumstances
of the case are such that death sentence is
warranted, the court would proceed to do so."
62. So far as aggravating circumstances are
concerned,
1) the offence 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.
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5) Hired killings.
63. Likewise, there are so many aggravating
circumstances. So far as mitigating circumstances are
concerned,
1) The manner and circumstances in and
under which the offence was committed, for
example, extreme mental or emotional
disturbance or extreme provocation in
contradiction 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 circumstances which, in normal
course of life, would render such a behavior
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 behavior that, in the facts and
circumstances of the case, the accused believed
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that he was morally justified in committing the
offence.
64. The Court has to apply the test to determine, if
it was the "rarest of rare" case for imposition of death
sentence.
65. In a case of present nature, life imprisonment is
the rule and death sentence is an exception. The accused
on account of not withdrawing the complaint filed against
him by the complainant (his wife) threatened her and took
away the child and thereafter, killed the child. Therefore,
the conduct of the accused also shows that because of
some ill will against his wife, he might have committed the
offence. So this case would not fall under the doctrine of
"rarest of rare" case. The option to impose sentence of
imprisonment for life can be cautiously exercised having
regard to the nature and circumstances of the crime and
all relevant considerations. In this case though in a brutal
manner accused killed his daughter, it may be because of
certain frustration or ill-will against his wife. Therefore, by
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applying the aforesaid principles as laid down by the
Hon'ble Apex Court in the aforesaid judgments, it can be
stated that, in the present case, the appellant/accused has
committed the offence by taking away his own child and
killed her because of frustration and ill-will as she has not
withdrawn the complaint. Therefore in our considered
view, the facts and circumstances of the case would not
attract the doctrine of "rarest of rare" case as stated
above.
66. The Hon'ble Apex Court in another judgment in
the case of Sundar @ Sundarrajan Vs. State by Inspector
of Police4, held that, 'rarest of rare' doctrine does not
require that, in such a case only death sentence has to be
imposed. As per the evidence brought on record, the
accused has no criminal antecedents and he is young
person. There is possibility of he being reformed himself
and rehabilitated in the society. These factors are to be
seriously and earnestly considered. More so, it is the
(2023) SCC Online SC 310
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obligation of the prosecution to prove to the satisfaction of
the Court through evidence that, there is a probability that
the convict cannot be reformed or rehabilitated.
Undisputedly, the prosecution has not placed any material
in that regard either before the Trial Court or before this
Court to show that, there is a possibility of the
appellant/accused being not reformed. There is no history
of previous conviction insofar as appellant/accused is
concerned. However, history of the convict by itself
cannot be a ground for awarding him death penalty.
67. Therefore, taking into consideration of all these
factors, we find that the present case is not fit for
imposition of death penalty. Another reason that weighs
with us is that from the evidence of the witnesses, it is
clear that because of frustration and ill-will against his wife
he might have committed said offence. It has come in the
evidence that after their marriage either the parents of the
complainant or the parents of the accused did not permit
them to enter their houses. Because of isolated life, led
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by him he might have taken such a step. The evidence of
witnesses would show that, the accused because of said
frustration might have committed the said offence.
68. The Trial Court imposed capital sentence on the
accused/appellant. A perusal of judgment of the Trial
Court would reveal that the Trial Court must have imposed
death sentence only on the ground that the accused killed
his own daughter. The order of sentence was passed on
the same day on finding him guilty. Therefore, the death
sentence imposed against the accused is to be converted
into life imprisonment.
69. Accordingly, the above said points are answered
partly in the favour of the prosecution.
70. Resultantly, we pass the following:
ORDER
(i) Criminal Reference No.100002/2021 is
rejected.
(ii) Criminal Appeal No.100219/2021 is
allowed in part.
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(ii) Death sentence imposed by the Trial
Court is commuted to life imprisonment.
Consequentially, the accused is sentenced to
undergo life imprisonment for the offence
punishable under Section 302 of IPC.
(iii) So far as sentence imposed for the
offence under Section 201 of IPC, remains intact.
(ii) Intimate the Trial Court as well as
Superintendent of Jail regarding modification of
the sentence through mail forthwith.
(iii) The Trial Court is directed to issue
modified conviction warrant against the accused.
(iv) Sent back the Trial Court records
forthwith along with copy of the judgment.
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(v) Supply a copy of this judgment to the
accused free of cost.
(vi) Legal fees of Amicus Curiae is
quantified at Rs.5,000/-. Registry is directed to
pay the same digitally.
Sd/-
JUDGE
Sd/-
JUDGE
SMM
