Karnataka High Court
Ramjanbi And Ors vs The State Of Karnataka And Anr on 25 September, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 200176 of 2024
C/W CRL.A No. 200116 of 2025
CRL.RC No. 200001 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
®
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
CRIMINAL APPEAL NO.200176 OF 2024
C/W
CRIMINAL APPEAL NO.200116 OF 2025 &
CRIMINAL REFERENCE CASE NO.200001/2024
IN CRL.A. NO.200176 OF 2024
BETWEEN
1. RAMJANBI W/O MAHAMMADSAB,
AGE: 72 YEARS,
OCC: COOLIE,
Digitally signed R/O: GUNDAKANAL, TQ: MUDDEBIHAL,
by NIJAMUDDIN
JAMKHANDI
DIST: VIJAYPURA - 586 212.
Location: HIGH (ACCUSED NO.4)
COURT OF
KARNATAKA
2. DAVALBI @ SALMA,
W/O BANDENAWAZ JAMADAR,
AGE: 42 YEARS,
OCC: COOLIE,
R/O: MALUR, TQ: SURAPUR,
DIST: YADGIRI - 585 224.
(ACCUSED NO.5)
3. AJAMA
W/O JILANI DAKANI,
AGE: MAJOR,
(ACCUSED NO.6)
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CRL.A No. 200176 of 2024
C/W CRL.A No. 200116 of 2025
CRL.RC No. 200001 of 2024
HC-KAR
4. JALANI
S/O ABDULKHADAR DAKANI,
AGE: 42 YEARS,
(ACCUSED NO.7)
ACCUSED NO.6 & 7 ARE COOLIE,
HUSBAND AND WIFE,
R/O: KONNUR VILLAGE, MUDDEBIHAL,
VIJAYPURA - 585 212.
5. DAVALABI W/O SUBAN DANNUR,
AGE: MAJOR,
R/O: LAKSHMAPUR VILLAGE,
NOW AT SURPUR, YADGIRI - 585 224.
(ACCUSED NO.8)
...APPELLANTS
(BY SRI VISHAL PRATAP SINGH, ADVOCATE FOR A1 TO
A4; & SRI SHIVANAND V. PATTANSHETTI, ADVOCATE
FOR A5)
AND
1. THE STATE OF KARNATAKA,
THROUGH DY. SUPERINTENDENT OF POLICE,
BASVANBAGEWADI,
REPRESENTED BY THE
ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
2. SAIBANNA @ MUDKAPPA
S/O SHARANAPPA KONNUR
AGE: MAJOR, HINDU-BEDAR, LORRY DRIVER,
GUNDAKANAL, MUDDEBIHAL,
VIJAYPURA - 585 212.
(COMPLAINANT)
...RESPONDENTS
(BY SRI SIDDALING P. PATIL, ADDL. SPP FOR R1;
& SMT. SRIDEVI B. ALBA, ADVOCATE FOR R2)
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CRL.A No. 200176 of 2024
C/W CRL.A No. 200116 of 2025
CRL.RC No. 200001 of 2024
HC-KAR
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION FOR THE OFFENCES U/S 143, 147,
148, 341, 448, 436, 302, 307, 315, 504, 506 OF THE IPC AND
WERE ALSO CONVICTED FOR THE OFFENCE U/S 3(1)(R),
3(1)(S), 3(2)(V) OF THE SC/ST ACT VIDE ORDER DATED
22.04.2024 PASSED BY THE LD. II ADDITIONAL SESSIONS &
SPL. JUDGE, AT VIJAYAPURA IN SPL. CASE (SC/ST)
NO.33/2017, IN THE INTEREST OF JUSTICE.
IN CRL.A. NO.200116 OF 2025
BETWEEN
1. IBRAHIMSAB S/O MAHAMMADSAB ATTAR,
AGE: 23 YEARS,
R/O: GUNDAKANAL,
TQ: MUDDEBIHAL,
DIST: VIJAYAPURA - 586 212.
(ACCUSED NO.1)
2. AKBAR S/O MAHAMMADSAB ATTAR,
AGE: 20 YEARS,
OCC: LORRY DRIVER/CLEANER,
R/O: GUNDAKANAL,
TQ: MUDDEBIHAL,
DIST: VIJAYAPURA - 586 212.
(ACCUSED NO.2)
...APPELLANTS
(BY SRI VISHAL PRATAP SINGH, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
THROUGH DY. SUPERINTENDENT OF POLICE,
BASVANBAGEWADI,
REPRESENTED BY
THE ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
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CRL.A No. 200176 of 2024
C/W CRL.A No. 200116 of 2025
CRL.RC No. 200001 of 2024
HC-KAR
2. SAIBANNA @ MUDAKAPPA,
S/O SHARANAPPA KONNUR,
AGE: MAJOR, HINDU-BEDAR,
LORRY DRIVER, GUNDAKANAL,
MUDDEBIHAL, VIJAYPURA - 585 212.
(COMPLAINANT)
...RESPONDNETS
(BY SRI SIDDALING P. PATIL, ADDL. SPP FOR R1;
& SMT. SRIDEVI B. ALBA, ADVOCATE FOR R2)
THIS CRL.A. IS FILED U/S.415(2) of BNSS (374(2)) OF
CR.P.C PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION FOR THE OFFENCES
U/S 143, 147, 148, 341, 447, 436, 302, 307, 315, 504, 506 OF
IPC AND WERE ALSO CONVICTED FOR THE OFFENCE U/S 3(1)
(R), 3(1) (S), 3(2) (V) OF THE SC/ST ACT VIDE ORDER DATED
22.04.2024 PASSED BY THE LD. II ADDITIONAL SESSIONS &
SPL. JUDGE, AT VIJAYAPURA IN SPL. CASE (SC/ST)
NO.33/2017, IN THE INTEREST OF JUSTICE.
IN CRL.R.C.No.200001 OF 2024
BETWEEN
THE STATE OF KARNATAKA,
BY DEPUTY SUPERINTENDENT OF POLICE,
BASAVAN BAGEWADI.
...COMPLAINANT
(BY SRI SIDDALING S PATIL, ADDL SPP)
AND
1. IBRAHIMSAB S/O MAHAMMADSAB ATTAR,
AGE: 23 YEARS,
R/O: GUNDAKANAL,
TQ: MUDDEBIHAL,
DIST: VIJAYAPURA - 586 212.
(ACCUSED NO.1)
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CRL.A No. 200176 of 2024
C/W CRL.A No. 200116 of 2025
CRL.RC No. 200001 of 2024
HC-KAR
2. AKBAR S/O MAHAMMADSAB ATTAR,
AGE: 20 YEARS,
OCC: LORRY DRIVER/CLEANER,
R/O: GUNDAKANAL,
TQ: MUDDEBIHAL,
DIST: VIJAYAPURA - 586 212.
(ACCUSED NO.2)
...ACCUSED
(BY SRI VISHAL PRATAP SINGH, ADVOCATE)
THIS CRL.R.C. IS REGISTERED AS REQUIRED UNDER
U/S.366 CR.P.C IN VIEW OF LETTER NO.CRL./5636/2024
DATED 06.05.2024 FROM THE COURT OF THE II ADDL.
DISTRICT AND SESSIONS/SPECIAL COURT, VIJAYAPUR
SEEKING CONFORMATION OF DEATH SENTENCE DATED
03.05.2024 AWARDED BY THE COURT OF THE II ADDL.
DISTRICT AND SESSIONS AND SPECIAL JUDGE, VIJAYAPURA
IN SPECIAL CASE (SC/ST) NO.33/2017 DATED 22.04.2024 TO
THE APPELLANTS I.E., ACCUSED NO.1-IBRAHIMSAB S/O
MAHAMMADSAB ATTAR AND ACCUSED NO.2 - AKBAR S/O
MAHAMMADSAB ATTAR.
THESE CRL.APPEALS AND CRL.R.C HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 16.09.2025 AND COMING
ON FOR 'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE T.M.NADAF
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CRL.A No. 200176 of 2024
C/W CRL.A No. 200116 of 2025
CRL.RC No. 200001 of 2024
HC-KAR
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Crl.A.No.200176/2014 is filed by accused No.4 to 8
and Crl.A.No.200116/2025 is filed by accused No.1 and 2
challenging the judgment of conviction dated 22.04.2024
and order of sentence dated 03.05.2024 passed by the II
Additional District and Sessions and Special Judge,
Vijayapura (hereinafter referred to as 'trial Judge') against
accused No.1 and 2 for capital punishment and life
imprisonment against accused No.4 to 8 for the offences
invoked against them for the Indian Penal Code (IPC) and
also under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Amendment Act, 2015 (for short,
'SC/ST (PA) Act').
2. The Crl.R.C.No.20001/2024 is registered on the
basis of the letter No.Cril/5636/2024 by the II Additional
District and Sessions/Special Court, Vijayapur dated
06.05.2024 wherein the trial Judge passed the death
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sentence and sent a reference for confirmation of the
death sentence under Section 366 of Code of Criminal
Procedure (Cr.P.C) vide judgment of conviction dated
22.04.2024 and order of sentence dated 03.05.2024
passed in Special Case (SC/ST) No.33/2017 on the file of
the II Additional District and Sessions and Special Judge,
Vijayapura.
3. The factual matrix of the case of the
prosecution in the charge-sheet filed by the Deputy
Superintendent of Police, Basavan Bagewadi alleged
against accused No.1, 2 and 4 to 8 along with accused
No.3/child conflict with law, that they have committed the
offences under Section 143, 147, 148, 341, 447, 302, 307,
315, 436, 504 and 506 read with Section 149 of IPC and
under Section 3(i)(r)(s) and 3 (2)(v) SC/ST (PA) Act. In
the charge-sheet, it is alleged that all the accused persons
with common object assembled together on 03.06.2017 at
about 03.30 p.m. in front of Kannada school and also in
front of house of accused No.4 situated at Gundaknal
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Village as they become the member of unlawful assembly,
committed the offence of rioting holding deadly weapons
like sticks, stones, axe and knife restrained the
complainant and CW-9/Kasturibai. It is also alleged that
they trespassed into the house of complainant and
committed mischief by setting fire to the house of
complainant with an intention to destroy it, which is
ordinarily used as human dwelling.
It is also the allegation that accused No.1 assaulted
the complainant with stone on his head, accused No.2
assaulted with handle of axe on his back with an intention
to commit murder and accused No.3 assaulted deceased-
Bhanu Begum with stick on her head, accused No.5
assaulted her with stone, accused No.1 brought the
kerosene from the house and poured on the body of
deceased-Bhanu Begum, after dragging her from the
house by accused No.4 to 6 and accused No.2 set fire on
her body and committed the murder intentionally causing
the death of Bhanu Begum, who was pregnant having nine
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month old fetus in her womb. As a result of which, the
said Bhanu Begum died before giving birth to her child and
also abused CW-9/Kasturibai in a filthy language and
humiliated by taking their castes name and threatened the
complainant and CW-9/Kasturibai knowing fully well that
they are the members of scheduled caste and committed
the offence under the SC/ST (PA) Act. These are the sum
and substance of the allegation of the charge-sheet.
4. The police after registration of the case,
investigated the matter and filed the charge-sheet,
accused persons were secured and they did not plead
guilty and claims to be tried. In order to prove the case,
prosecution examined PWs.-1 to 32, out of 37 witnesses
cited in the charge-sheet and during the trial also got
marked the documents as Exs.P1 to P.52 and MOs-1 to
13.
5. The prosecution after having concluded the
evidence, subjected the accused persons and recorded
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their statement under Section 313 Cr.P.C and they did not
choose to examine any witnesses on their behalf as
defence evidence.
6. The trial Judge having considered both oral and
documentary evidence, answered all the points as
affirmative in coming to the conclusion that charges
leveled against the accused have been proved for the
above offences and convicted accused No.1 and 2 and
sentenced for capital punishment and accused No.4 to 8
for life imprisonment, apart from other sentences for other
offences.
7. Being aggrieved by the judgment of conviction
and order of sentence, accused No.4 to 8 have filed
Criminal Appeal No.200176/2024 wherein they specifically
contended that they are innocent of the charges leveled
against them and prosecution failed to establish its case
beyond all reasonable doubt and the existence of probable
alternatives, committed an error in convicting and
sentencing them.
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8. The learned counsel for the appellants also
would vehemently contend that prosecution relied only on
interested witnesses and all the independent witnesses
have not supported the case of prosecution. The recovery
panchas also have not supported the case of prosecution
and all the interested witnesses are the direct relatives of
the complainant. The trial Judge failed to consider the
evidence with due care and caution when the interested
witnesses have been examined before the trial Court.
9. The counsel also vehemently contend that
Ramjanbi, who is accused No.4 is none other than the
mother of the deceased, who is aged about 65 years and
the appellants lacks physical and mental strength to
commit the said act. The counsel also would vehemently
contend that appellant No.2, 3, 4 and 5 were not even
present, when the alleged incident has occurred and they
were with their respective families at a different place and
their presence was not established by the Investigating
officer with any independent material.
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10. The presence of accused No.4 to 8 is proved
through the evidence of close family members of the
complainant without any corroborative evidence.
Investigating Officer has not properly investigated the
matter and not collected any material showing the
presence of the other accused persons and the
independent witnesses, who were projected as
eyewitnesses by the prosecution, did not support the case
of the prosecution. In spite of it, the trial Judge accepted
the evidence of the interested witnesses.
11. It is contended that complainant himself has
been accused of committing an offence of rape when the
deceased was a minor and learned trial Judge committed
an error in appreciating both oral and documentary
evidence and without the support of the fact and law,
convicted the accused persons.
12. The other appeal i.e., Criminal Appeal
No.200116/2025 is filed by accused No.1 and 2, who have
been convicted and sentenced for death sentence. It is
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contended that the trial Judge fails to take note of the
material in a proper perspective and relied upon the very
same grounds and contend that the trial Judge committed
an error in believing only the interested witnesses
evidence. It is also contended that the material on record
clearly shows that accused No.8, who is the elder sister of
the deceased, had also married a person belonging to
Bedara community. It is also contended by counsel that
they have children from the said marriage. When the
accused persons have tolerated that elder sister of the
deceased had also married a person belongs to Bedara
community, question of committing this offence doesn't
arise and no motive. Thus, the question of honor killing
itself does not arise and complainant himself has been
accused of committing an offence of rape, when the
deceased was minor. The counsel also would contend that
he might have killed, and not the accused persons.
13. The counsel also would vehemently contend
that trial Judge is not correct in conducting the trial in
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such a fashion, but it is wholly incorrect in letting himself
swayed by the images of burnt body of the deceased to
classify the case as the rarest of the rare case and
committed an error in awarding capital punishment to
accused No.1 and 2 and imposing double life punishment
for other accused persons.
14. The trial Judge without considering the evidence
in a proper perspective and without the support of the
evidence of any independent witnesses, convicted the
accused persons. There is no aggravating circumstances to
impose the capital punishment and fails to consider
mitigating circumstances.
15. The counsel during the course of argument also
vehemently contend that when PWs-1 and 2 have not
supported, trial Judge committed an error in considering
the evidence of PW-3, who is the husband of the deceased
and other witnesses i.e., PWs-8, 10, 11, 12 and 31 and
these witnesses only supported the case of the prosecution
and all of them are interested witnesses.
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16. The counsel would contend that accused No.3 is
a juvenile, accused No.4 is the mother and accused No.8 is
the elder sister and the case of prosecution is that accused
No.1 poured the kerosene and accused No.2 set fire
cannot be believed. The evidence of the prosecution that
PW-3 escaped and witnessed the incident standing by the
side of the place of incident. It is emerged during the
course of evidence that neighbours were gathered, but
they have not supported and the evidence of witnesses is
nothing but omnibus statement, and the very presence of
the eyewitnesses is doubtful and the case of prosecution is
also doubtful.
17. The counsel also would vehemently contend
that evidence of PW-21 - Doctor i.e., injury not
corroborates with the injury sustained by PW-3. The
evidence of witnesses not corroborates the evidence of
Doctor who has been examined before the Court and
Doctor said that injury sustained by PW-3 are not
sustainable, if any such assault was made considering the
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nature of injuries. The counsel also brought to notice of
this Court that when his wife was burnt alive that too
victim is a pregnant woman, question of PW-3 running
away from the spot being afraid of the incident, not
supported the case of the prosecution, it is very clear that
he was not available at the spot when the incident was
taken place.
18. The counsel would contend that recovery of
weapon was made i.e., MOs-8 and 11 and the same was
not sent for Forensic Science Laboratory (FSL) for
examination. The counsel would contend that Ex.P-24 -
wound certificate no history is mentioned. The counsel
also would vehemently contend that though an offence
under Section 307 of IPC was invoked but same was not
attracts as the injuries were simple in nature.
19. The counsel would contend that the evidence
available on record, it is very clear that PW-3 was not in
scene of occurrence. The counsel also would vehemently
contend that when the interested witnesses have deposed
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and their evidence is omnibus evidence and independent
witnesses have not supported, the trial Judge ought to
have considered the material available on record with due
care and caution, but same has not been done properly.
20. The counsel relied upon the inconsistency of the
evidence available on record. The counsel also would
vehemently contend that the panch witnesses PWs-4 and
5, who are the inquest witnesses and PWs-1 and 2 who
are the witnesses to the spot panchanama, all of them
have not supported the case of prosecution.
21. The counsel would contend that prosecution
seized MOs-8 and 11 i.e., handle of axe and knife but
PWs.6 and 7 are the weapon recovery witnesses have not
supported the case of prosecution.
22. The counsel would contend that independent
eyewitnesses are PWs-14 to 20 and none of them have
supported the case of prosecution. The trial Judge relied
upon only the evidence of PW-8, who is the mother of the
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complainant and PW-10 sister of the complainant and PW-
11 is the husband of PW-10, PW-12 is the aunt of the
complainant, PW-31 is the cousin of the complainant.
Though these witnesses have supported the case of the
prosecution but the answer elicited from their mouth
during the course of cross-examination discredited the
case of prosecution.
23. No doubt, it is the case of the prosecution that
complainant had sustained the injury and examined the
Doctor as PW-21 but the evidence of Doctor do not
corroborates with the case of the prosecution. No doubt,
PW-22 conducted the postmortem and given the report.
The witness PW-23 was examined with regard to the
marriage registration certificate. The issuance of the caste
certificate of the accused is by PWs-26 and 27. PW-28
speaks about the spot sketch map, and Investigation
Officer is examined as PW-32. The counsel referring the
evidence of these witnesses also would contend that the
trial Judge committed an error in appreciating both oral
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and documentary evidence and believed only interested
witnesses of the family of the complainant witnesses.
24. The learned counsel in support of his argument,
he relied upon the decision in the case of Md.Jabbar Ali
and others vs. The State of Assam reported in (2022) 15
SCR 773 and brought to notice of this Court at paragraph
No.48, 50, 51 and 54 and referring these paragraphs
would contend that just because the witnesses are related
interested partisan witnesses, their testimonies cannot be
disregarded, however, it is also true that when the
witnesses are related/interested, their testimonies have to
be scrutinized with greater care and circumspection. The
observation in the judgment clearly shows that when the
prosecution has examined only related witnesses and not
a single independent witness and therefore in the facts
and circumstances of the case, the evidence does not
prove the alleged offences.
25. The learned counsel referring paragraph No.48
would contend that a great weight has been attached to
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the testimonies of the witnesses in the instant case.
Further, an observation made that this Court in a number
of cases had the opportunity to consider the said aspect of
related/interested/ partisan witnesses and the credibility of
such witnesses.
26. This Court is conscious of the well settled
principle that just because the witnesses are related/
interested/partisan witnesses, their testimonies cannot be
disregarded, however, it is also true that when the
witnesses are related/interested, their testimonies have to
be scrutinized with greater care and circumspection as
discussed in the judgment of Gangadhar Behera and
others vs State Of Orissa - (2002) 8 SCC 381.
27. The learned counsel referring paragraph No.50
and 51 also brought to notice of this case in case where
witnesses are relatives witnesses have to be considered by
applying discerning scrutiny.
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28. The learned counsel also relied upon the
judgment in the case of Jaikam Khan vs. The State of
Uttar Pradesh reported in (2021) 14 SCR 767 and brought
to notice of the this Court the discussion made with regard
to the related witnesses and creditworthiness and merely
because the witnesses are interested and the related
witnesses, it cannot be a ground to disbelieve their
testimony. However, the testimony of such witnesses has
to be scrutinized with due care and caution. Upon scrutiny
of the evidence of such witnesses, if the Court is satisfied
that evidence is creditworthy, then there is no bar, and the
Court in relying on such evidence, also an observation is
made that non-examination of independent witnesses
wherein held that large number of villagers had gathered
at the spot, after the incident and none of the independent
witnesses were examined by the prosecution, which makes
the prosecution version is doubtful.
29. The learned counsel also relied upon the
decision passed in Writ Petition (Criminal) No.371/2023
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decided on 25.08.2025 and also brought to notice of this
Court the discussion of the Hon'ble Apex Court in the case
of Manoj and others vs State of Madhya Pradesh - 2023
(2) SCC 353 wherein scope of Article 32 of the
Constitution elaborately discussed in detail.
30. Learned counsel also brought to notice of this
Court the discussion made with regard to the practical
guidelines to collect mitigating circumstances and take
note of there is urgent need to ensure that mitigating
circumstances are considered at the trial stage, to avoid
slipping into a retributive response to the brutality of the
crime, as is noticeably the situation in a majority of cases
reaching the appellate stage. That the trial Court must
elicit information from the accused and the State, and the
same will help establish proximity to the accused person's
frame of mind at the time of committing the crime and
offer guidance on mitigating factors.
31. The learned counsel also having relied upon the
aforesaid decision with regard to the capital punishment is
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concerned brought to notice of this Court the discussion
was made for procedural fairness in capital sentencing as
an imperative under Articles 14 and 21 of the Constitution
of India and preliminary power to mould relief under
Articles 32 and 142 of the Constitution of India and also
brought to notice of this Court the discussion made in the
judgment of Manoj's case, in detail and brought to notice
of this Court that in view of the detailed discussion, it is
not a case for capital punishment.
32. The learned counsel also relied upon judgment
passed in Criminal Appeal No.1421/2015 decided on
14.03.2023 in the case of Nand Lal vs The State of
Chhattisgarh and brought to notice of this Court at
paragraph No.33 and 34 wherein discussion was made
with regard to the category of "wholly reliable" witness,
there is no difficulty for the prosecution to press for
conviction on the basis of testimony of such a witness. In
case of "wholly unreliable" witness, again, there is no
difficulty, inasmuch as no conviction could be made on the
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basis of oral testimony provided by a "wholly unreliable"
witness. Also brought to notice of this Court in paragraph
No.34, a discussion was made with regard to a possibility
of false implication cannot be ruled out. In the case on
hand, due to earlier previous ill-will falsely implicated the
accused persons.
33. The learned counsel also relied upon the
judgment passed in Criminal Appeal No.753/2017 decided
on 22.11.2021, in a case of Arvind Kumar @ Nemichand
and others vs The State Of Rajasthan. The learned counsel
referring this judgment brought to notice of this Court that
in detail discussed about fair, defective, colourable
investigation and also discussed with regard to the motive
in committing the offence and no such motive is made out
to commit the offence and would contend that when
already one of the family members i.e., elder sister
already married the other person who belongs to same
community and they are leading their life happily, question
of honor killing doesn't arise.
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34. On account of a reference made by the District
Judge under Section 366 of Cr.P.C with a request to
confirm the death sentence, office of II Addl. District and
Sessions/Special Court, Vijayapura vide letter
No.Cril/5636/2024 dated 06.05.2024 requested to place
the matter before the Hon'ble High Court with a prayer to
confirm the death sentence imposed by the trial Court as
against Accused No.1 and 2.
35. Now this Court has to consider the contention of
the State i.e., Addl. State Public Prosecutor. The Addl.
State Public Prosecutor in his argument would vehemently
contend that though some of the witnesses have turned
hostile, but the evidence of witnesses who have deposed
before the Court, i.e. PWs-3, 8, 10, 11, 12 and 31 is
consistent and it is a case of honor killing and proved the
motive for killing.
36. The learned counsel would vehemently contend
that all of them have formed unlawful assembly with an
intention of common object, set fire on the dwelling house
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and dragged the deceased from their house in front of the
house of accused No.4, assaulted the deceased as well as
PW-3 and other injured witness.
37. The prosecution mainly relies upon the evidence
of PW-21, who treated the injured PW-3 and his evidence
is very clear that when they dragged the deceased and
assaulted him and others, he ran away from the spot in
order to save his life. He stood nearby the place and
witnessed how they burnt alive his wife. PW-3 evidence is
very clear that the manner in which they assaulted and
committed the offence. The Doctor evidence is very clear
that PW-3 also sustained injuries. The Doctor - PW-22 who
conducted autopsy has given the post mortem report,
which clearly corroborates the case of the prosecution that
victim had sustained severe injuries on her head prior to
setting fire on her.
38. The counsel also would vehemently contend
that PW-23 is the Sub-Registrar who received the
registration marriage application and examined him in
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order to prove that deceased and PW-3 were married,
PWs-24 and
25 are constables and PW-26 and PW-27 are Tahasildar
who have issued the caste certificate of PW-3 and caste
certificate of accused No.8. The PW-28 is an engineer who
prepared the sketch at the spot and PW-29 is the official
witness and PW-30 who has arrested accused i.e., accused
no.2, 4, 5 and 7. The PW-31 is the eyewitness who
witnessed the incident, there may be some discrepancies
in the evidence of PW-8, but the evidence of PW-3 and
PW-31 is consistent. They have categorically deposed
before the Court that accused No.4 to 8 dragged the
victim and accused No.5 assaulted with stick and MO-7
stick is also seized and minor discrepancies will not go to
the very root of the case and corroborates each other and
corroboration is not a rule, but probability of the case to
be looked into.
39. The counsel also would contend that when both
husband and wife returned from Goa and within two
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months from their return, set the fire. The evidence of
prosecution witnesses is consistent.
40. The learned Additional State Public Prosecutor
also prepared the overt act chart and contend that even
the independent witnesses have not supported the case of
the prosecution and evidence of PWs-3, 8, 10, 11, 12 and
13 corroborates each other. PW-3 categorically deposes
before the Court that accused came by forming an
unlawful assembly with deadly weapons, set the fire to the
house of the complainant where he was residing along
with his wife, and accused persons abused in a filthy
language taking the caste name that Bedar sulemaga i.e.,
abused by all the accused persons that he made his wife
as pregnant. Accused No.2 assaulted the complainant
with handle of axe and accused No.1 assaulted him with a
stone and he sustained injuries on back, head and
shoulder.
41. It is also very clear that all the accused dragged
the deceased-Bhanu Begum in front of house of accused
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No.4 and accused No.5 also assaulted with stick, as a
result the deceased-Banu Begum became unconscious. It
is also a specific case that all the accused abused in filthy
language as she became a pregnant by lower community
person and kicked her. The specific evidence of PW3 that
accused No.1 poured kerosene on the deceased-Bhanu
Begum and accused No.2 set fire on the deceased-Bhanu
Begum.
42. The counsel also brought to notice of this Court
the evidence of PW.8 who also spoken about the fact that
the complainant and deceased-Bhanu Begum were there
in their house and accused persons came and set fire on
the house and assaulted the complainant and his wife
deceased-Bhanu Begum. Accused No.1 assaulted
complainant i.e. PW-3 with an axe and PWs-11, 13, 14
and 21 tried to rescue and pacify the galata, but all the
accused threatened them and dragged the deceased -
Bhanu Begum by holding her hairs in front of the house of
accused No.4 and poured the kerosene and set fire.
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43. The counsel also brought to notice of this Court
that PW-10 also spoke about all the accused persons
assaulting the complainant near his house and also about
assaulting the deceased - Bhanu Begum with stick and
stone and abused in a filthy language that she became a
pregnant and also abused the complainant by taking his
caste name. Accused No.3 who is a juvenile also assaulted
with stone to the complainant and accused No.4, 5 and 6
dragged Bhanu Begum from her house and poured the
kerosene and set the fire. Even when an attempt was
made to rescue by PWs.10 and 13, accused caused the
threat on them.
44. PW.11 categorically deposes before the Court
that all the accused assaulted with stone and stick and
also with an axe. All the accused persons dragged the
deceased-Bhanu Begum and poured the kerosene and set
fire. The counsel brought to notice of this Court the
evidence of PW-12 that blood was oozing from the nose of
PW.10 -Geetha and also identifies all the material objects
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that are stick, stones, knife and axe. Even assaulted the
complainant with stone and accused No.2 with axe.
Accused No.1 and 7 set the fire to the house where
complainant and deceased were living by pouring kerosene
and accused No.4, 5 and 6 dragged deceased-Bhanu
Begum from her house and dragged towards their house.
45. The counsel appearing for the State i.e.,
Additional State Public Prosecutor also would contend that
accused No.7 shown knife to PW-3 when he tried to rescue
his wife and assaulted with the same and all the accused
also threatened him with dire consequences.
46. The counsel also brought to the notice of this
Court the evidence of PW-12 that in front of the house of
accused, accused No.3 assaulted deceased-Bhanu Begum
with stick on her head and thereby she sustained injuries.
Accused No.8 also assaulted her with stone. Thereafter,
deceased become unconscious. The evidence of PW-12 is
very clear that as a result of injury sustained by her, she
became unconscious and immediately accused No.1
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brought the kerosene and poured on her and accused No.2
set the fire.
47. The counsel also brought to notice of this Court
the evidence of PW-31 that PW-1 categorically deposed
that all the accused making an unlawful assembly with
deadly weapons like stones, sticks and an axe. Also her
evidence is very clear that they dragged the deceased-
Bhanu Begum, when PW-3 tried to rescue her, but all the
accused threatened him. It is also his contention that by
that time accused No.2 had beaten PW-3. All the accused
dragged her and assaulted with axe and sticks and poured
the kerosene on her i.e., accused No.1 and accused No.2
set the fire on her. All these evidence corroborates with
each other with regard to the overt act of each of the
accused persons.
48. The Additional State Public Prosecutor also
brought to notice of this Court apart from the evidence
available on the record that trial Judge taking into note of
the aggravating circumstances of the case, rightly imposed
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the capital punishment as against accused No.1 and 2. The
counsel submits that child was in the womb and also the
manner in which committed the offence was taken note of
by the trial Judge while imposing the capital punishment.
49. The counsel also would contend that they
dragged her from her house and set fire on her that too in
front of the house of accused No.4 in the daylight i.e., at
4:30 pm. and even did not take note that she was a
pregnant carrying 36 weeks child in the womb. The
counsel also would submit that they assaulted with stick,
as a result, she sustained injury to head and post mortem
report also corresponds with nature of injuries sustained
by her, apart from burnt injuries and also restricted her
movement and set fire. The counsel also relied upon the
reported decision of the Hon'ble Apex Court in the case of
Mukesh and Anr. Vs. State for NCT of Delhi and Ors.
reported in AIR 2017 SC 2161 and brought to the notice of
this Court, the detail discussion is made while awarding
capital punishment.
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50. The complainant Advocate also would submit
that though elder sister of the deceased married other
caste person, but she was converted to Muslim and hence
they are not having any ill-will against her. Since other
sister also who married the inter religion, when she
converted to Muslim, they were not having any motive to
commit murder. The counsel also would submit that the
trial Court has not committed any error in sentencing and
convicting.
51. In reply to this argument, the counsel
appearing for the accused would submit that there was no
such conversion and no such material is also before the
Court to prove the fact of conversion.
52. The counsel also would contend that when the
witnesses turned hostile, Public Prosecutor put leading
questions and counsel also would contend that presence of
accused No.4 to 8 is disputed then the evidence available
on record is not credible since they were not present at
the spot.
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53. The counsel also would contend that Section
143 of IPC is not proved, the question of invoking Section
149 doesn't arise and hence, would contend that Accused
No.4 to 8 are entitled for acquittal and no case is made
out against accused No.1 and 2 for capital punishment and
hence it requires interference of this Court.
54. Having heard the appellants' counsel and the
counsel appearing for the State and also the reference
which has been received from the District Court and also
the principles laid down in the judgments cited supra, the
points that would arise for consideration of this Court are:
i) Whether the trial Judge committed an
error in convicting the accused persons for
the charges leveled against them and
whether it requires any interference of
this Court?
ii) Whether the trial Judge committed an
error in imposing the capital punishment
against accused No.1 and 2 and whether
it requires interference of this Court?
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iii) Whether the reference received from the
trial Judge requires to be allowed in
confirming the capital punishment
imposed against accused No.1 and 2 by
the trial Judge under Section 366 of
Cr.P.C.?
iv) What order?
Point No.1:
55. Having heard the respective counsels and also
considering the grounds urged by the appellants in these
appeals and also the learned Addl. SPP as well as learned
counsel for complainant with regard to reference, before
considering the material on record, this Court has to
consider both oral and documentary evidence available on
record to re-appreciate the material and the reasoning
given by the Trial Court in convicting and sentencing the
accused persons.
56. Now, let us consider the oral and documentary
evidence. Before considering the documentary evidence,
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this Court would like to first consider the oral evidence of
the prosecution witnesses.
57. PW-1 and PW-2 are mahazar witnesses in
respect of Ex.P-1, for having drawn the spot mahazar at
the spot. Both of them have turned hostile, stating that
the police had only taken their signatures on the document
and that they are not aware of either the accused or
conducting of any spot mahazar or seizure of any articles
at the spot. However, they admit that photographs were
taken and identifies the said photographs marked at Ex.P-
2 to P-4 and disputed their photo, though they cannot say
for what reason those photographs were taken by the
police. The learned Addl. Public Prosecutor, treating those
two witnesses, suggested that the police had drawn the
mahazar and seized the material objects at the spot,
which is denied by both PW-1 and PW-2. The evidence of
PW-1 and PW-2 is similar, and hence, both the evidence
are taken together.
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58. PW-3 is the husband of the deceased. In his
chief evidence, he states that he belongs to Hindu Bedar
caste and that the accused persons were known to him
and they belong to Muslim religion. He deposed that he
and the deceased were in love with each other from their
younger age and about five years ago he took her to Goa,
where both of them started residing together after their
marriage. It is his further evidence that when she became
pregnant, they came back to their village and their
marriage was registered in the office of Sub-Registrar,
Muddebihal.
59. It is his specific evidence that about four years
ago, when they were residing together in the house of his
senior uncle, at about 3:30 p.m., the accused persons
came and set fire on the said dwelling house. However,
both of them managed to come out of the house. By that
time, the accused persons abused him, taking his caste
name in filthy language, with an intention to humiliate
him. They abused him as to why he took their sister and
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also threatened his life. It is his further evidence that
accused No.2 assaulted him with a stick of axe and
accused No.1 assaulted him with a stone, as a result of
which he sustained injuries on his left shoulder, back and
head. Somehow, he managed to escape from the clutches
of the accused persons.
60. It is also his specific evidence that all the
accused persons dragged his wife from the said place near
the house of accused No.4, who is the mother of the
deceased and at that time accused No.5 assaulted her with
a stick on her head, as a result of which she lost her
consciousness. Thereafter, all the accused persons abused
her, again taking his caste name stating that she had
become pregnant by a Bedara and kicked her. Accused
No.1 brought kerosene and poured on the deceased and
accused No.2 set her on fire. This incident was witnessed
by him while standing on the land of one Sanganagowda
and as a result of setting fire, his wife was burnt alive. The
motive for committing the murder was that the deceased
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had married him by way of an inter-religion marriage. He
further deposed that he went to the police station on the
same day at about 11:00 p.m. and lodged a complaint. He
identified the complaint as well as his signature, which are
marked as Ex.P-5(a). He stated that the police have also
recorded his further statement.
61. It is his evidence that since he had sustained
injuries, the police sent him to the hospital. The mahazar
was conducted on the next day and he identified his
signature in the mahazar, marked as Ex.P-1(b). It is also
evident that the police have also prepared a sketch and
obtained his signature and the police took photographs of
the spot where he was assaulted with stone and the said
photos are produced and marked as Ex.P-2. The police
have also drawn mahazar where his wife was burnt, he
also identified photographs of him in Ex.P-3 and so also
the spot mahazar, which was drawn in front of the house
of accused No.4 and he identified his photograph in Ex.P-
4. He further stated that the police seized the stone,
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broken bangles, ash and both stained and unstained mud
at the spot. The burnt peaces clothes of the deceased and
other material were also seized, which are marked as M.O-
1 to M.O-5. It is also his evidence that the police also
conducted inquest and photographs were taken and the
said photographs are marked at Ex.P-6. After the inquest,
the body was handed over to him and he was issued a
receipt at Ex.P-7 and he identified his signature as Ex.P-
7(a). PW-3 also says that the marriage was registered and
marriage certificate is attested at Ex.P-8 and identified his
signature at Ex.P8(a).
62. This witness was subjected to cross-
examination. In cross-examination, he admits that he is
called Saibanna and also Mudukappa in the village. It is
also his evidence that the houses of the accused are also
located in the same area and his house is located after
some houses from the accused's house. It was suggested
to him that the house in which they were residing
belonged to one Malleshappa, and the same was denied.
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However, admits that said Malleshappa is his senior uncle
through his mother. It was suggested that said
Malleshappa was doing business of kerosene at
Davanagere, which was denied.
63. It was further suggested that at the time of the
incident, accused No.1 and 2 were staying at Hyderabad
and Vijayawada respectively and both of them were
working as drivers, the said suggestion was denied.
However, he admits that accused No.8-husband is one
Subhash Dhannur, but he does not know his caste. It was
suggested to him that accused No.8 is his relative, which
was denied.
64. It was also suggested that his wife had lodged a
complaint against him earlier and he says that the said
complaint was filed because she was threatened to lodge
the complaint and also suggested that a POCSO case was
registered against him in Crime No.14/2017, which he
denied.
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65. It is suggested that immediately after
kidnapping her, he kept her in Kesarpura village of
Muddebihal taluk, but he says that he took her directly to
Goa. It is suggested that when he took her, she was aged
about 16 to 17 years and he denies the same, but says
that she was 20 years old. He admits that after the
deceased married him, she was converted to Hindu
religion and was named as Lakshmi. He also admits that
for registration of the marriage, he called the villagers' of
Kesarpura, who belongs to the grandmother's village.
66. He admits that the house, which is found in
Ex.P-3, wherein he himself and the deceased were
residing, there is one door to the said house. It is
suggested that when the deceased did not agree to take
back the case filed against him, he along with his father,
mother and Malleshappa, all of them joined together and
poured kerosene and set fire on her, and the said
suggestion was denied. He admits that in the said area his
relatives are having 3 to 4 houses. He says that when the
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accused persons assaulted, at that time neighbors also
came to the spot and his relatives also came to the spot
and all of them tried to rescue him from the accused
persons. However, he says that when his relatives came to
rescue, the accused persons did not allow them to rescue
him.
67. He says that he made a statement in the
complaint that he witnessed the incident standing on the
land of Sanganagowda, when they set fire on his wife, but
he was unable to hear what was the conversation between
them. He says each of the accused separately abused him
by taking his caste name. It is suggested that at the time
of the incident, the accused persons were not at the spot
and the same was denied.
68. It is suggested that when the deceased-Banu
gave the complaint against him and when she did not
agree to take back the same, with an intention to get
compensation and also with an intention to relieve himself
from the said case, all of them committed murder and filed
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a false complaint against the accused persons and he is
giving false evidence. The said suggestion was denied.
However, he admits that he has received an amount of
Rs.75,000/- as compensation.
69. It is also his evidence that after receipt of his
police complaint, police sent him to hospital and the
distance between Talikote and his village is 14 kilometers
and the village of Bandeppa Salotgi is at a distance of 6
kilometers. He also says that he went to Bandeppa Salotgi
running from his village. He admits that from Bandeppa
Salotgi to Talikote, many vehicles travel and he says that
he went to the police station between 7:30 to 8:00 p.m.
alone. Though he says that he gave the documents of
Crime No.14/2017 firstly, later he says that he has not
given any such documents.
70. It is suggested that accused No.1 and 2 did not
assault him and that accused No.4 did not drag his wife. It
is further suggested that the accused persons have not
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made any assault, nor abused him by taking his caste
name. The said suggestions were denied.
71. PW-4 is one of the witnesses to the inquest and
seizure of the cloth from accused No.1 and a signatory to
Exs.P-9 and P-10, and though, he identifies his signature,
but he turned hostile, categorically stating that police did
not conduct any inquest and no clothes were seized.
However, he identifies photograph in Ex.P-6 and also Ex.P-
11, but says that he cannot say why the police took those
photos.
72. In cross-examination, treating him as hostile,
suggestion was made that police conducted inquest
between 8:00 to 9:30 p.m. and the same was denied. It is
also suggested that Ex.P-9 photograph was taken while
drawing the mahazar, and the same was denied. It is
suggested that while drawing the mahazar in terms of
Ex.P-10, accused No.1's clothes were seized, i.e., a shirt
and pant and the same was denied. However, he admits
that the accused persons belong to Muslim religion. It is
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also his evidence that he is acquainted with Kannada
language for reading and writing and also he admits that
he signed the document only after reading its contents.
73. PW-5 is another panch witness to Ex.P-10 and
he identifies to having affixed his signature on Ex.P-10 as
Ex.P-10(b). However, he says that the police only took his
signature and did not seize any articles in his presence. He
identifies his photo in Ex.P-11.
74. This witness was subjected to cross-
examination. A suggestion was made that clothes of
accused No.1 were seized in terms of Ex.P-10 in his
presence, but he denied the same.
75. The other witness, PW-6, is a witness to Ex.P-
12. He identifies his signature in Ex. P-12(a). However, he
says that the police neither seized any articles nor
prepared any mahazar in his presence. He identifies his
photographs in Exs.P-13 to P-16, but states that he does
not know for what reason those photos were taken.
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76. In the cross-examination, a suggestion was
made that when mahazar was drawn in terms of Ex.P-12,
the axe and the iron knife were seized in his presence
from accused No.2 and 7, but the same was denied. It was
further suggested that in that connection only Exs.P-13 to
P-16 photographs were taken, which also he denied.
77. PW-7, another witness to Ex.P-12 identified his
signature as Ex. P-12(b), but also stated that he does not
know the contents of the Ex.P-12. He further stated that
the police neither seized any articles nor drew any
mahazar in his presence. However, he identifies his
photograph in Exs.P-13 to P-16. This witness was also
subjected to cross-examination in the same line as PW-6
and denied the same.
78. PW-8 is the mother of PW-3. In her evidence
she deposes that they belong to Hindu Bedara community.
She reiterates that the accused persons came at about
3:30 p.m. and set fire on the house where PW-3 and the
deceased were residing. Immediately, PW-3 and his wife
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came out from the said house. At that time, accused No.1
assaulted her son and his wife. It is her evidence that
accused persons assaulted with stone on PW-3. Accused
No.1 assaulted with a stick of axe on PW-3, and thereafter
PW-3 ran away from the said place.
79. It is also her evidence that when CWs-11, 13,
14 and 21 tried to pacify the quarrel, but the accused
persons assaulted them also. She further states that all
the accused persons dragged her daughter in law from
that place infront of the house of accused No.4 and all the
accused persons poured kerosene and set fire to the
deceased. As a result, she succumbed to burn injuries.
80. It is her evidence that her son (PW-3) married
the deceased, who belongs to the Muslim religion. Hence,
accused persons committed the murder and also abused
that they are not going to leave the people of Bedara
community and abused them by taking their caste name.
The police have recorded her statement. PW-8 also
identifies the M.O.8 i.e., the axe. This witness was
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subjected to cross-examination and during the cross-
examination, a suggestion was made that the deceased
was below 18 years of age, when PW-1 took her and the
same was denied and says that the deceased was aged
about 20 years. This witness admits that the deceased had
given a complaint against her son at Talikote Police
Station. She says that PW-3 i.e., her son and her
daughter-in-law were staying in the house belongs to her
brother-in-law and there was no door to the said house.
She also states that the accused persons abused them by
taking their caste name. It is suggested that she is falsely
deposing that accused No.1 assaulted her son with a stone
and bitten and the said suggestion was denied. The
witness admits that she cannot tell the details of the
husbands of accused No.5, 6 and 8, and their addresses
are also not known to her. It was suggested that accused
No.8 was married to one Subhash Dhannur, but the same
is denied. A suggestion was also made that Subhash
Dhannur is her relative, and the same was denied. But,
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she admits that he belongs to the same community of
Bedara cast. However, she also admits that they have
named the deceased as Lakshmi after the marriage. It was
suggested that when the deceased did not agree to take
back the case filed against she along with her son, her son
and husband poured kerosene and set fire on her, but the
same was denied.
81. The PW-9 in his evidence says that PW-3 is his
son and PW-8 is his wife and they belongs to the Bedara
community and also having acquaintance with the accused
persons. He says that when he came to know about the
incident at around 4:00 p.m. immediately, he rushed to
the police station and he met PW-3. On inquiry his son
PW-3 revealed that the accused persons set fire to the
house and also on the his wife and committed her murder.
He noticed that PW-3 had sustained injuries on his back
and also on his leg. This was done since there was a
marriage of inter-religion. It is also his evidence that the
police sent PW-3 to the hospital for treatment.
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82. This witness was subjected to cross-
examination. In the cross-examination, a suggestion was
made that one Malleshappa, is his relative and is doing
kerosene business at Davangere and the same is
admitted. Also he admits that the said Malleshappa was
having a house at Talikote. He also admits that accused
No.8 was married to Subhash Dhannur, who belongs to his
caste. It was suggested to this witness that when the
deceased did not agree to take back the complaint filed
against PW-3, he himself, his wife and son, all of them
poured the kerosene and set her on fire, but the same was
denied.
83. PW-10 is the sister of PW-3 and she says that
she was given in marriage to Surapura village, and now
she is staying with her relatives in the same village
Gundakanala, but residing separately and earlier herself
and her parents were living together. She further states
that her brother/PW-3 fell in love with the deceased and
both of them did not inform the family members, went to
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Goa. Hence, the accused persons were having vengeance
against her brother (PW-3). The accused persons are all
the family members of the deceased-Bhanu. The accused
persons belonged to the Muslim religion, whereas they
belong to Valmiki caste. It is her evidence that at 3:00
p.m., near the house of PW-3, the accused persons along
with another boy were assaulting the PW-3 and also the
deceased with stick, stone, knife and axe. All of them have
abused her brother/PW-3 by taking his caste name.
Accused No.3 assaulted him with stone and stick on his
back. Other accused persons dragged the deceased.
Accused No.4 poured the kerosene and accused No.2 set
the fire and as a result, she lost her life. This incident was
taken place at around 4:00 p.m.
84. It is also her evidence that she, her husband,
Amaramma, and Rekha tried to rescue her brother/PW-3
and also the deceased, but, the accused persons did not
allow them to rescue. Hence, he ran away from the spot
near the land of Sanganagowda. Thereafter, PW.3 went
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and lodged the complaint. On enquiry, she says that she
can identify the stone and axe, which were used for
committing the offence and identified the M.Os-1 and 8.
85. This witness was subjected to cross-
examination. In the cross-examination, she admits that
she came back and started residing at Gundakanala from
the last 10 years, but did not give any election card or
ration card to the police. It is suggested that deceased
gave a complaint against PW-3 in 2017 alleging that he
committed rape on her. It is elicited that after the POCSO
case registered against the PW-3, the PW-3 took the
deceased to Goa and he did not return. It is also
suggested that both of them after attaining majority, went
and got registered their marriage at Muddebihal and when
they came back to Gundakanala, the deceased was 3
months pregnant.
86. The witness admits that Subhash Dhannur is
her relative and that accused No.8 is married to him. It is
suggested that PW-3 used to commit sexual acts against
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the deceased and he was refusing to marry her and the
said suggestion was denied. It is further elicited that the
house of the accused as well as the house where her
brother (PW-3) was residing face the north side and also
admits that her senior uncle's name is Malleshappa and
that he is doing kerosene business at Davanagere. She
further admits that both PW-3 and the deceased were
residing in a single-room house and had a temporary
bathroom. She says that at the time of incident, there
were about 100 people present and many of them
belonged to their community. On the date of the incident,
the accused persons dragged the deceased and set her on
fire. She further says that she also made an attempt to
extinguish the fire by pouring water and PW-3 had not
sustained burn injuries. It is suggested to her that PW-3
himself set fire on the deceased and thereafter ran away
from the spot on land of Sanganagowda, the same was
denied. She says that when the deceased was set on fire,
her brother tried to extinguish the flames and he was
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rescued. It is suggested to her that they are twisting the
facts and that actually PW-3 himself set fire on the
deceased, which she denied.
87. PW-11 says that PW-3 was working as a lorry
driver. The deceased married him and both of them went
to a different village for earning and thereafter, they came
back and stayed at Gundakanala. The accused persons
belonged to Muslim religion and they were causing threat.
The incident had taken place 5 years ago at Gundakanala
and he was resident of the neighbouring house. When he
went to see his in-laws, accused persons were assaulting
PW-3 and the deceased with stone and stick. Accused
persons even used the axe. When they went to rescue the
victims, the accused gave a life threat to them also. The
accused persons poured kerosene and set fire and then
PW-3 went and gave the complaint.
88. In the cross examination, he says that he came
to the spot, when the incident was going on and prior to
his arrival, his wife Geetha went to the spot. When he
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went to the spot, he found a matchbox in the hands of his
wife. A suggestion was made that a case was registered
against PW-3 and he denies the same. A suggestion was
made that immediately after marriage they went to a
different place for earning and when she became
pregnant, they came back to the village and same was
admitted. It is also suggested that PW-3 was requesting
the deceased to take back the case, since both of them
were living together cordially and the said suggestion was
admitted. He states that when he went to the spot, the
deceased came out from the house of PW-3 with fire on
her, but witness says that the accused persons dragged
deceased and set fire.
89. PW-12 in his evidence says that he belongs to
Bedara community. He admits that PW-3 and deceased
got married and after that they came back to Gundakanala
village and that the deceased belonged to Muslim
community. The accused persons were quarrelling with the
deceased and PW-3. The accused persons were having
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intention to assault the deceased and PW-3 and they set
fire on the deceased. This witness says that on hearing the
sound, he came near the house of PW-3 and by that time
he reached, the accused had already set fire on the
deceased, PW-10/Geetha also sustained injuries and blood
was oozing from her nose and they took PW-8 to others
house. This witness was treated as hostile by the learned
Additional Public Prosecutor and was cross examined.
90. During the cross-examination, a suggestion was
made that accused persons came with stick, knife, stone
and axe and same was admitted. Further suggestion was
made that they were having an intention to commit the
murder of both of them and the same was admitted. It is
suggested that accused No.1 assaulted PW-3 and accused
No.2 assaulted with stick of axe on his back and the same
is admitted. It is suggested that fire was set on the
dwelling house of the deceased and PW-3 and the same is
admitted. It is suggested that he himself, Sumitra,
Basamma, Basanna, Khwajabi, Rahusab and Saidappa,
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went to pacify the quarrel and the same is admitted. It is
also suggested that accused persons at that time caused
threat and the same is admitted. A suggestion made
regarding overt act and the same is admitted. Also, when
the suggestion was made that accused no.1 poured the
kerosene and set fire, same is admitted. A suggestion is
made that PW-3 was abused by taking their caste name,
the same was also admitted.
91. This witness was subjected to cross-
examination by the accused counsel and he admits in the
cross-examination that CW-11/Geetha and her
husband/CW-12 both belong to Srinivasa village of
Surpura taluk and admits the same. CW-12 came to the
Gundakanala village at around 5:00 to 6:00 p.m. and
admits that PW-3 instructed him to go and give evidence
before the Court. It is suggested that he cannot say who
abused PW-3 by taking the caste name and he admits the
same.
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92. PW-13, a mahazar witness to Ex.P-9, admits he
had signed Ex. P-9(b), but later turned hostile and he only
identifies the photo. In cross-examination by the Public
Prosecutor treating the witness as hostile, nothing has
been elicited.
93. PW-14 also turned hostile and also not aware of
the cast of each of them. In chief examination, he denied
all the suggestions. On being treated as hostile and cross-
examined in detail, nothing is elicited from the mouth of
PW-14, since prosecution claims his witness as eye
witness.
94. PW-15 has also not supported the case of the
prosecution and this witness is also examined as an eye
witness to the incident. In cross-examination, suggestions
were made in line with the statement given before the
police during the course of investigation, but nothing has
been elicited.
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95. Similarly, PW-16, PW-17, PW-18, PW-19, PW-
20 and all of them have not supported the case of the
prosecution, though cited as eyewitnesses to the incident.
Nothing has been elicited from them in cross-examination,
after treating them hostile.
96. PW-21 is the doctor, who examined PW-3 when
he came to hospital. On examination, found the following
injuries on the body of PW-3:
"1) Multiple small abrasion over the left shoulder-
bite marks found. Dried blood cloth present,
measuring 3 cm x 2 cm.
2) Linear Scratch mark over the right shoulder
region, 3 to 4 in number.
3) Abrasion over occipital partial region measuring
about ½ x ½ cm, blood clot present."
97. Doctor opined that the above stated injuries are
simple in nature. They may be caused due to hard and
sharp object and the age of the said injuries is 6 to 12
hours and issued wound certificate, which is marked as Ex.
P-24 and signature of witness is marked as Ex. P-24(a). It
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is also the evidence of PW-21, when a person bite another
through his mouth on his shoulder, the injury No.1
mentioned in the Ex. P-24 could be caused. When a
person has been assaulted by a stone (M.O.1), the injury
No.3 mentioned in Ex.P-24 (would certificate) could be
caused. When a person has been assaulted by a stick,
injury No.2 mentioned in Ex.P-24 could be caused. When
this witness was subjected to cross examination, it is
elicited that he enquired about the history of assault, but
he does not remember whether the injured explained
about the assault on him. He has noted down the injuries
sustained by the injured person in the MLC register. He did
not remember any smell of kerosene on the body of the
injured. It is elicited that the police did not bring any stone
at the time of examination of the witness.
98. Injury No.1 was bite marks, probably caused by
a human being. It is admitted that injuries No.2 and 3
could be caused if a person falls from a two-wheeler and
injury No.1 could be caused if a person comes in contact
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with the bark-integument of a jaali tree. It is suggested
that the wound certificate is issued as per say of
investigation officer, which is denied.
99. Another witness is PW-22, who conducted the
post-mortem of the victim (deceased), who is aged about
21 years, on 04.06.2017 at 12:30 P.M. He found clothes
and articles on the body, partially burnt blue-white nylon
cloth pieces over trunk and limbs, black beaded
mangalsutra, white metallic toe rings and yellow metallic
nose stud, which were handed over to police in an
unsealed manner. He also noted the external injuries: the
body was in partial pugilistic posture on its back, heat
stiffening and rigor mortis present all over the body. The
scalp hair and all the body hairs are burnt and singied, nail
beds were bluish, blood-stained fluid forth oozing from
mouth nostrils, tongue partly protruded and covered by
black soot particles at its base. Abdomen was enlarged.
The following injuries were noted on the body:
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"1. Contused abrasion over left side fore head 5x4
cm with blackening of left eye.
2. Lacerated wound over right side cheek 2x ½ cm
x bone deep blood clots present.
3. Second and third degree dry burns present all
over the body except over sides of scalp, back of
middle part of trunk and both sole, cuticle
blackened and peeled off exposing areas of
redness at places, all the body hairs are burnt and
singied.
Injuries found on the head:
1) Scalp; Hairs described, on reflection contusion
over both frontal, left parietal and inter parietal
regions. Skull; Intact.
2) Meninge's; Show presence of bilateral sub-
dural and sub-arachnoid bleed at over at places.
Brain; Weight; 1250 grams, congested.
3) Brain; Weight; 1250 grams, congested.
4) Spinal cord; Intact.
Injuries found on the chest:
1) Wall; Described.
2) Pleural cavity; Congested.
3) Larynx, Trachea; Congested contain black soot
particles with frothy fluid till terminal bronchiols.
4) Lungs; Congested cut sections exhude's cherry
red blood and froth Weight - Right 500 grams
Left; 450 grams.
5) Pericardium; Congested.
6) Heart; Congested, contain cherry red blood
weight; 200 grams.
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7) Large vessels; Aorta-Intact, congested.
Injuries found on the Abdomen:
1) Wall; Described.
2) Peritoneal cavity; Congested.
3) Pharynx, Esophagus; Congested.
4) Stomach: Contain 100 ml size solid rice meal,
no abnormal smell, mucosa normal.
5) Intestines; Intact, discolored 7 distended with
gas,
6) Liver; 1500 grams, Congested.
7) Spleen; 150 grams, caspule wrinkled.
Injuries found on the Uro-Genital organs:
1) Kidneys; Congested Right; 150 grams Left; 120
grams.
2) Bladder; Intact empty.
3) External genitalia; Second and third degree dry
burns present Internal genitalia; Uterus enlarged,
on dissection it contain dead male fetus of length
44 cms, weighing 2400 grams with intact
umbilical cord and placenta (Intra uterine age of
36-38 weeks) after examination the fetus is
packed separately and handed over to police.
4) Bone and Joints; Intact.
5) Any other disease or anomaly; Nil.
6) Time since death; 12-14 hours before
postmortem examination.
7) Nature of wounds; All wounds and burns are
ante-mortem in nature and are fresh.
8) Viscera preserved if any; Nil"
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100. The doctor, having mentioned those injuries,
gave an opinion that the cause of death of the deceased
was due to shock and as a result of burns, consequent to
head injuries sustained. The deceased was pregnant with
male fetus of about 36-38 weeks of gestational age.
101. The post-mortem report is marked as Ex.P-25
and signature of PW-25(a). M.O.7 is also identified and
says when a person has been assaulted, the injuries to the
head of the deceased could be caused by stick (M.O.7).
The doctor also identifies partially burnt clothes (M.O.6).
102. This witness was subjected to cross-
examination. In cross-examination, he states that any
Medical Officer is competent to conduct autopsy. At the
time of conducting post-mortem, rigor mortis was found.
Before conducting the post-mortem, investigation officer
had not shown the photographs of the deceased. A
suggestion was made that only on perusal of inquest
details, he has foreseen the injuries on the dead body of
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the deceased, which is denied. The signature of another
Medical Officer, who was present while conducting the
post-mortem, was also identified. It is admitted that prior
to post-mortem and after post-mortem, the weight of the
deceased body was not mentioned in Ex.P-25, though he
has mentioned the weight of the individual parts of the
body. Term gestation for a baby is 9 months and 7 days.
He admits that he has mentioned in the first page of the
post-mortem report, the gestation period as 35 to 38
weeks, but in the last page mentioned it as 36 to 38
weeks. He has not mentioned the percentage of burn
injuries in Ex.P-25.
103. It is admitted that the post-mortem was
conducted approximately 21-22 hours after the time of
death of the deceased. No videography was taken while
conducting the post-mortem. The stick (M.O.7) was not
shown to him during post-mortem by the investigation
officer. A suggestion was made that if a person falls on a
hard object, the injuries to the head mentioned in the
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post-mortem report could be caused. It is elicited that the
post-mortem report is very clear that all wounds and
burns were ante-mortem in nature and fresh, i.e., within 0
to 36 hours. It is elicited that taken note of the injuries
found on the deceased before conducting the post-
mortem, were not furnished to the investigation officer.
104. The prosecution relies upon the evidence of
PW.23, who is the Sub-Registrar. In his evidence, he
stated that both the deceased and PW.3 had submitted an
application for registration of marriage on 16.05.2017.
However, the marriage was not registered, and the notice
of intended marriage was produced before the Court as
Ex.P.8. The cover from the office was also marked as Ex.P-
26, and signature was marked as Ex.P-26(a). In the cross-
examination, it is suggested that the signature found on
deceased did not belong to her. This suggestion was
denied, but it was also noted that her signature of left
thumb impression had not been identified by any person.
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105. The PW.24, then working as head constable of
Talikote police station is the witness who took the seized
articles i.e., half-burnt pieces of cloth. He handed them
over and produced the acknowledgement for having given
the same to FSL, which is marked as Ex.P-27, and he
identified his signature as Ex.P-27(a). The receipt was
marked as Ex.P-28. In the cross-examination, he admitted
that, as per the oral instructions of Dy.SP, he had handed
over the same, and accordingly, he complied. A suggestion
was made that he deposed falsely on the instructions of
higher officers and the same was denied.
106. PW.25 was appointed to trace the accused
persons. In his evidence, he stated that he made all
efforts to identify the accused persons but could not find
any of them. He gave his report in terms of Ex.P.29, and
his signature was marked as Ex.P-29(a).
107. PW.26 is an officer, who on the request of the
Dy.SP issued caste certificate of PW.3, PW.8 and accused
persons. Accordingly, he gave the report.
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108. PW.27 is the Tahsildar. On the request of
Dy.SP, he issued the caste certificate of accused No.8,
which was marked as Ex.P-31, stating that he belonged to
Category-2B. In the cross-examination, he admitted that
her husband's caste name was not mentioned and that it
may have been mentioned in the Revenue Inspector's
report.
109. The PW.28 is an engineer who prepared the
sketch of the place of incident. He produced the sketch in
terms of Ex.P-32 and identified the covering letter as Ex.P-
33. In the cross- examination, he admitted that around
the place shown in Ex.P-32, apart from the lands of other
than the lands of Sanganagowda, other lands were also
situated. He had prepared the sketch on his laptop, and he
prepared the rough sketch at the spot. A suggestion was
made that the sketches were prepared without visiting the
spot, and the same is denied.
110. PW.29 is the CPC-582. In his evidence, he
stated that he had seized the blood stained mud,
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unstained mud, shirt, and had appointed a person to send
the same to the FSL. The report was submitted to the
Dy.SP in terms of Ex.P-37. It was suggested that seized
articles were not sent to the FSL and same was denied.
111. PW.30 who is the PSI and he deposed that on
4.6.2017 he was appointed to apprehend the accused
persons. He apprehended accused No.2, 4, 5 and 7 in
Bandappana Salotagiri village near bus stand and
produced them before the Dy.SP. In respect of remaining
accused persons, he stated that he could not trace them
and therefore, submitted a report. In cross-examination, it
was suggested that the accused had not been arrested
and produced before the Dy.SP and the same was denied.
112. PW.31 is an eyewitness to the incident. In her
evidence, she stated that she is acquaintance with charge
sheet witnesses as well as the accused persons, and that
she had also seen the deceased. It is her evidence that
PW.3 and the deceased were in love with each other and
had married. PW.3 was working as driver. They were
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loving each other prior to two years of the incident.
Thereafter, they went to Goa, and where they stayed for
two months, and then they returned to Gundakanal
village. The deceased belonged to the Muslim community
and PW.3 belonged to the Bedara community. PW.31
further deposed that both of them were living in the house
of her aunt, and at that time the deceased was pregnant.
113. It is her evidence that the accused persons
came and dragged the deceased near the house of Agni
and assaulted her, stating that she had married a person
of Bedara community. They came to the spot armed with
stone, stick, dragged her, and when PW3 tried to rescue
her, accused No.2 bite him on his back. Thereafter, the
deceased was assaulted with axe, stick and then kerosene
was poured on her and she was set on fire. According to
the witness, accused No.1 poured the kerosene and
accused No.2 ignited the fire. The incident took place
between 4:00 p.m to 5:00 p.m. PW3 thereafter, went to
the police station. This incident was witnessed by CW.9,
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CW.16 and CW.17. The police enquired into the matter,
and PW-31 categorically stated that the accused persons
alone had committed the crime. She also identified M.O.1,
M.O.7 and M.O.8.
114. In cross-examination, she admitted that PW3 is
her uncle's son. She further admitted that in the said
place, members of the Bedara community are more in
number. She stated that at the time of the incident she
was already married, but volunteered that she was in the
village. She admitted that her husband's house is in
Srinivasapura of Hunasagi Taluk. The suggestion that, at
the time of the incident, she and her husband were
residing in Kamanative village was denied; she
volunteered that she was in her parental house. She
admitted that she had not produced any document
showing the marriage of PW-3 and the deceased.
115. It was suggested that a case had been
registered against PW-3 by the deceased under the POCSO
Act. The witness stated that she was not aware of the
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same. She admitted that she had acquaintance with the
accused persons and hence knew their names. However,
she stated that when she first saw the deceased, the
deceased was screaming, and the accused persons were
abusing her for marrying a person from the Bedara
community. The suggestion that she was falsely deposing
was denied.
116. She admitted that accused No.8 had been given
in marriage to one Subhash Dhannur, a resident of
Laxmipura of Surpur Taluk, who also belongs to her
community. However, the suggestion that Subhash
Dhannur was her relative was denied. She confirmed that
accused No.8 is the sister of the deceased.
117. It is further elicited that her senior uncle
Malleshappa resides at Davanagere. It is suggested that
she is falsely deposing before the Court against the
accused persons and the same was denied. She also
admitted that she did not attempt to interfere at the time
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of the incident. She explained that she did not try to pacify
the galata, as they had been threatened with their lives.
118. PW32 is the Dy.SP who conducted further
investigation in the matter. He identified the letter marked
as Ex.P-39 by which he was directed to conduct further
investigation. He deposed that he verified the investigation
carried out up to that point and thereafter recorded the
further statement of PW-3. He submitted a report in terms
of Ex.P.40 and identified his signature as Ex.P.40(a). It is
also his evidence that CW.1, CW.2 and CW.3 participated
in conducting the inquest from 8 am to 9:30 a.m.
119. In terms of Ex.P.9 he identified the signature as
Ex.P.9(c), and also stated that photographs were taken,
marked as Ex.P6. He further stated that he went to spot,
where PW.3 pointed out the place and in the presence of
CW.4 and CW.5 he conducted the spot panchanama from
10:15 am to 12 pm in terms of Ex.P.10 and identifying his
signature as Ex.P10(c) and photographs were taken in
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terms of Ex.P2 to Ex.P4 and got the sketch in terms of
Ex.P.41 and identified signature as Ex.P.41(a).
120. It is also his evidence that at the spot he seized
stone, broken bangles, ash, stained and unstained mud
and half burnt cloth, two sticks and the broken mangalaya
sara. These were marked as M.O.1 to M.O.7 which he
identified.
121. It is also his evidence that at the spot he seized
a stone, broken bangles, ash, stained and unstained mud,
half-burnt cloth, two sticks, and a broken mangalya sara.
These were marked as M.O.1 to M.O.7, which he
identified. He further deposed that he recorded the
statements of prosecution witnesses and instructed the
police to apprehend the accused persons. Accused No.2, 4,
5 and 7 were produced before him, and he arrested them
and recorded the voluntary statements of accused No.2
and 7. The voluntary statement of accused No. 2 was
marked as Ex.P.42, and that of accused No. 7 as Ex.P.43.
Pursuant to these statements, both accused led him and
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the panch witnesses to the house of accused No. 4, where
produced a knife. These were seized under Ex.P.12,
photographs were taken in terms of Ex.P.13 to Ex.P.16,
and he identified his signature as Ex.P.12(c). He also
identified M.O.8 and M.O.11.
122. The accused No.2 also produced blood stained
cloth and in the presence of CW.2 and CW.6 seized by
drawing the mahajar in terms of Ex.P.10 and he identifies
the signature as Ex.P10(c) and also identified the
signature of accused No.2 and also stated that
photographs were taken in terms of Ex.P.11 and he
identified the cloth which were seized under Ex.P.10 and
are marked as M.O.12 and M.O.13.
123. He also deposed that on the very same day the
accused persons were subjected to medical examination.
He recorded the statements of witnesses by visiting
Gundakanal. He requested CW-24, CW-25 and CW-26 to
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issue caste certificates and inquest reports, and
corresponded with CW-22, CW-23 and CW-27. He further
deposed that the deceased had given a statement under
Section 164. He also issued a memo to apprehend the
remaining accused persons.
124. It is also his evidence that he requested
issuance of the wound certificate of PW-3, which he
received in terms of Ex.P.24, and further collected Ex.P.25
from CW-28. He also collected the Section 164
statement/wound certificate of the deceased, marked as
Ex.P.44. He recorded the statements of the accused and
witnesses and obtained Ex.P.45 and Ex.P.46 certificates.
He also obtained caste certificates in terms of Ex.P.30,
Ex.P.47 and Ex.P.48. He sent the articles belonging to the
deceased, namely clothes, stained and unstained mud, to
the FSL, and received reports in terms of Ex.P.37, Ex.P.27
and Ex.P.28. He also identified Ex.P.49 and Ex.P.29, and
collected the sketch. After completion of the investigation,
he filed the charge sheet.
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125. In cross-examination, the witness admitted that
prior to registration of this case, a case had been
registered against the complainant. He admitted that only
a representation for registration of marriage was given,
but the marriage was not registered. It was suggested
that he, in collusion with PW-3, registered a false case,
which he denied. He admitted that before conducting the
mahazar he had not given any notice to the panch
witnesses. It was suggested that the documents were
prepared in the police station, which he denied.
126. Having considered the oral evidence, this Court
has to consider the documentary evidence.
127. Ex.P.52 is the FIR registered on the basis of the
complaint filed by the complainant, marked as Ex.P.5. In
the complaint Ex.P.5, the complainant narrated how the
incident took place and set out the role of each of the
accused persons. On perusal of Ex.P.5, it is seen that the
case was registered on the very same night at 11:00 p.m.,
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and thereafter the spot mahazar was conducted in terms
of Ex.P.1 on the following morning in the presence of
panch witnesses, between 10:15 a.m. and 12:00 noon.
Photographs of the spot were taken and marked as Ex.P.2
to Ex.P.4.
128. Ex.P.7 is the document evidencing receipt of
the dead body by the complainant. Ex.P.8 is the
application submitted for notice of intended marriage.
Ex.P.9 is the inquest report, in which the witnesses
identified their signatures, i.e., Ex.P.4 and Ex.P.5, and
photographs were also taken. These witnesses were also
witnesses to the inquest as well as to the seizure of the
clothes of accused No.1 and admits their photos, which
were confronted.
129. Ex.P.10 relates to the recovery of the shirt and
pant of accused No.2, between 5:45 pm and 6:30 p.m.
Photographs were taken in terms of Ex.P.11. Ex.P.12
pertains to the seizure of weapons from accused No.1 and
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7, namely a stick, an axe and a knife. Photographs were
taken in terms of Ex.P.13 to Ex.P.16. The witnesses
identified their signatures and photographs, but totally
denied the seizure.
130. Ex.P.24 is the wound certificate in respect of
PW-3, who sustained a bite injury, an injury on the right
shoulder, three to four linear scratch marks, and a blood
clot on the occipital-parietal region. Ex.P.25 is the autopsy
report, wherein details are given regarding the nature of
injuries and cause of death.
131. Ex.P.26 is the application submitted before the
Sub-Registrar. Ex.P.28 is the FSL acknowledgement.
Ex.P.15 is the FSL report with respect to the shirt and
pant, which tested positive for blood of AB group,
corresponding to article No.1 and 3, i.e., stained mud and
cloth. Ex.P.51 is the report of the FSL confirming detection
of kerosene residue in the cloth pieces that were seized.
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132. Having considered both oral and documentary
evidence, this Court is required to re-analyse the material
available on record, in order to determine whether the
Trial Court reached the correct conclusion or whether the
matter requires interference by extending the benefit of
doubt in favour of the accused persons, in the light of the
principles laid down in the judgments referred to supra.
133. No doubt, learned counsel appearing for the
appellants in both the appeals vehemently contended that
no such incident had taken place, and that the police had
not properly investigated the matter or collected any
material showing the presence of the accused persons,
particularly since the independent witnesses did not
support the case of the prosecution.
134. The learned counsel for the appellants
vehemently contended that the Trial Judge committed an
error in not properly appreciating both oral and
documentary evidence in its proper perspective. It is also
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contended that, since the elder sister of the deceased had
also married a person belonging to the Bedara community
and the accused persons had tolerated the same, the
question of committing this offence of honour killing does
not arise.
135. It is also contended that witnesses who have
supported are related witnesses. On the other hand, it is
the contention of the learned Additional SPP that the
material available on record though independent witnesses
have turned hostile and other witnesses who have
supported the case of prosecution corroborates the case of
prosecution and Trial Judge rightly appreciated both oral
and documentary evidence and even hostile witness
evidence partially supports the case of prosecution, when
photographs are confronted and admitted their photos.
136. No doubt, the counsel appearing for the
appellants brought to the notice of this Court the
judgment of Mohammad Jafar Ali and others (referred
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supra) and brought to the notice of this Court that
relevant paragraphs with regard to the interested parties
and witnesses and it is also set with principle that
interested witnesses testimonies cannot be discarded,
however, it requires due care and caution and with the
principles laid down in the judgment referred supra, this
Court also analyzed whether interested witnesses'
evidence constitute credible evidence or not and also the
judgment of Gangadhar Behera's case (referred supra) by
the counsel appearing for the appellant with regard to
their testimonies and the same has to be scrutinized with
greater care and circumspection and the same is settled
law.
137. The counsel further relied upon Jayakanth v.
State of Uttar Pradesh's case (referred supra) wherein also
discussion was made with regard to the related witnesses
and creditworthy witnesses. It was observed therein that
merely because witnesses are related, their testimonies
cannot be discarded, though the same requires careful
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scrutiny. In keeping the principles laid down in judgment,
this court has to reanalyze the material available on
record.
138. Now this Court would like to rely upon the
evidence of PW.1 and PW.2 and no doubt these two
witnesses are panch mahajar witnesses and both of them
have turned hostile. But the fact is that when the question
was asked with regard to the photographs is concerned
Ex.P.2 to Ex.P.4 admits their signature and photographs
but stated that they could not say for what reason photos
were taken and though they turned hostile and when they
identifies their signature in Ex.P.1 and identifies their
photos, it is clear that at the time of conducting the spot
mahajar both of them were present but turned hostile and
merely because they turned hostile, their evidence cannot
be discarded in toto and they had not given any
explanation why police had taken their photographs at the
spot and the very presence of those witnesses at the time
of conducting mahajar, is very clear in view of they
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identified their photos which depicts their photographs at
the spot.
139. Now turning to the evidence of the eyewitness
and injured witness, PW-3, he reiterated that he belongs
to the Bedara community and that he was in love with the
deceased prior to taking her to Goa. He further deposed
that both of them stayed in Goa for some time, and when
she became pregnant, they returned to their village,
where they faced threats. They were residing in the house
of his senior uncle and defence also not denied the same
even while cross-examining the PW.11 suggested the
same.
140. He categorically deposed that around 3:30 p.m.
the accused persons came, abused him in filthy language,
and set the house on fire in which they were residing.
When questioned, they had brought the deceased back
and threatened his life. It is his specific evidence that
accused No.1 and 2 assaulted him with the stick of an axe
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and also with a stone, as a result of which he sustained
injuries on his left shoulder, back, and head. On perusal of
the wound certificate, Ex.P.24, it is clear that he had
sustained three injuries, namely, a bite injury, an injury on
the right shoulder region, three to four linear scratch
marks, and a blood clot on the occipital-parietal region.
Thus, the oral evidence of PW-3 corroborates with the
medical evidence contained in Ex.P.24 and also the
evidence of PW.21, which clearly correspond with the
evidence of PW.3 and he is an eyewitness to the incident
and nothing discredited in the cross-examination.
141. PW-3 further deposed that when the assault
was made and threats to his life were given, he ran away
and stood near the land of Sanganagowda, from where he
witnessed the incident. He categorically deposed that the
accused persons dragged his wife in front of the house of
accused No.4, and that accused No.5 assaulted her with a
stick on her head, causing her to lose her consciousness.
They abused her for being pregnant by a man belonging to
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the Bedara community. Thereafter, accused No.1 poured
kerosene on her bringing the same from the house, and
accused No.2 set her on fire, as a result of which she was
burnt alive.
142. Immediately thereafter, PW-3 ran towards
Bandappana Salotagiri village, a distance of six kilometres,
and thereafter rushed to Talikote, where he lodged the
complaint. In cross-examination, he stated that he went to
the police station around 8:00 a.m. and lodged the
complaint, after which the police sent him to the hospital
for treatment and the evidence of the doctor PW.21 is
clear he was brought by police to the hospital. He denied
the suggestion that his senior uncle was dealing in
kerosene. He admitted that after the marriage, his wife's
name was changed to Lakshmi. It was suggested that
immediately after the marriage he took her to Kesarpura,
but he categorically stated that he took her to Goa, and
thereafter they came back to Kesarpura and gave an
application for registration of marriage and the document
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Ex.P8 evidence the same. When she became pregnant, he
brought her back to the village.
143. In cross-examination, a suggestion was made
that the deceased had given a complaint against him, and
therefore he and his family members themselves had set
her on fire. This suggestion was categorically denied. It
must be noted that though such a defence was suggested,
the accused persons did not lodge any complaint against
PW-3 or his family members and only defence was taken.
The same is not substantiated. The fact that the deceased
was burnt alive is not in dispute; the defence of the
accused is only that they were not present at the spot and
pleaded alibi suggesting that particularly accused No.1
and were not there but plea of alibi to be proved by the
defence.
144. It was also suggested that accused No.1 and 2
were working as drivers at Hyderabad and Vijayawada.
This suggestion was denied by PW-1. It was further
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suggested that in the same lane where the accused
resided, other houses were also situated, which was
admitted. It also came in evidence that Malleshappa was
his senior uncle, and that the husband of accused No.8 is
one Subhash Dhannur. However, he denied knowledge of
his caste name. It has also emerged in evidence that PW-3
belongs to the Bedara community, which fact is admitted
by other witnesses. It was suggested that the deceased
had given a complaint against him, but he categorically
deposed that the said case was registered only under
threat.
145. PW-3 further admitted that in the photograph
Ex.P.3, the house depicted therein has only one door. He
also categorically admitted that at the time of the assault,
neighbours as well as his relatives rushed to the spot.
They attempted to pacify the galata, but the accused
persons did not allow them to rescue the deceased. He
further deposed that when the accused persons set fire, he
witnessed the same while standing on the land of
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Sanganagowda, and this fact was also mentioned in the
complaint and the injuries which he sustained makes it
clear that when he made an attempt to rescue his wife, he
was threatened and assaulted.
146. But only admission was given that he was not
able to hear what they were conversing and except these
answers, nothing is elicited from the mouth of PW3 that he
was not at the spot and though counsel appearing for the
appellant would contend that he was not present at the
spot at the time of the incident, there is no explanation on
the part of the counsel appearing for the defence that how
he had sustained injuries in terms of Ex.P24 and hence the
very contention of the learned counsel for the appellant
that he is not an eyewitness to the incident cannot be
accepted.
147. The Trial Court also taken note of the evidence
of PW.3 is as consistent with regard to the incident is
concerned and also he categorically admitted that the
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Talikote is located at the distance of 14 kilometers and
Bandappana Salottagi is at the distance of 6 kilometers
and he ran to the said village and thereafter he went to
Talikote. He admits that vehicles are moving from
Bandappana Salotagiri to Talikote. No doubt the admission
is very clear that he had reached the police station at
around 07.30 pm to 08.00 pm. and also case is registered
at 11.00. But in the meanwhile, he went to the hospital
and he took the treatment and the same is evident from
the evidence of PW9, who is the father went to police
station directly on information. He had also rushed to the
police station when he comes to know about the same and
he was not in the village when the incident was taken
place. His evidence is clear that when he went to the
police station he found the complainant in the police
station and also noticed the injuries found on PW.3 on his
back and also on the leg and motive is also deposed by
PW3 and PW9 that the PW3 married a muslim girl. This
witness admits that Maleshappa, is his distant relative and
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he does kerosene business at Davangere, so also admitted
that the husband of accused no.8 belongs to Bedara
community and except these answers nothing is elicited
and though PW3 denies the same, but answer is elicited
from PW9 about the said Maleshappa and also the
Subhash Dhannur and this PW.9 is not an eyewitness to
the incident. However prosecution relies upon the evidence
of PW8, who is the mother of PW3, and her evidence is
also similar to the evidence of PW3 that accused assaulted
with stone and stick on her son. But while deposing with
regard to the assault with stone and stick, not specifically
deposed, but accused No.1 and 2 assaulted with stone and
stick reiterated and also categorically deposed that
deceased was brought near the house of accused by
holding her hair. PW.8 speaks about abusing by taking
caste name. In the cross-examination, she admits that
deceased has lodged complaint against her son.
148. In the cross-examination of PW.8 regarding she
was not at the spot, nothing is elicited. Though PW.1 not
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spoken anything about the bitten injuries, but in the cross-
examination the very defence counsel itself has suggested
that accused no.1 not assaulted with stone and also he did
not cause the bitten injury on PW3 and this suggestion
itself corroborates the case of prosecution, this witness
also admitted that after the marriage between her son and
daughter-in-law, they have named the daughter-in-law as
Lakshmi. The defence also suggested to this witness also
that deceased did not agree to take back the case filed
against her son and hence herself, her husband and PW3
have set the fire and the same was denied and this Court
already pointed out that the similar defence was taken
while cross examining other witnesses also and but no
complaint was given and suggestion remains as
suggestion.
149. The other eye witness is PW10, who is also the
sister of PW3 and she reiterates about the marriage
between the accused and also the deceased and she also
witnessed the incident and motive for committing the
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murder also that there was an inter religion marriage and
hence having ill will to commit the murder. Though some
discrepancy found in deposing that accused no. 4, poured
the kerosene and accused no. 2, set the fire. But accused
no.2 only set the fire that is also deposed by PW.10 only
discrepancy is that accused No.4 set the fire and it is not
the case of the prosecution witnesses that accused no. 4
poured the kerosene but all the witnesses deposed that
accused No.1 only poured the kerosene and accused No.2
set the fire. This witness also categorically deposes that
when they tried to rescue the deceased and they are not
allowed to rescue her. In the cross-examination admitted
the registration of the case against PW.3 by the deceased
at the first instance and also while cross examining this
witness, the case of the prosecution was suggested by the
defence itself that accused took her to Goa and
immediately he did not come back to the village and also
suggestion was made that after he took her to the Goa
came back to Kesarpura Village and got registered the
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marriage at Muddebihal Sub Registrar Office and these are
the suggestions are made to the witness and also
suggestion was made that she was pregnant of three
months and these suggestions itself clearly discloses that
the accused persons have not denied the fact that accused
took her to Goa and they did not come back immediately
and went to the Kesarpura village of Muddebihal taluk and
given an application for registration of marriage and
nothing is elicited from the mouth of this witness except
eliciting the answer that Subhash Dhannur who is her
relative and he married the accused no. 8 and also admits
that Malleshappa is her senior uncle and he is doing
kerosene business at Davangere.
150. Having considered the evidence of PW3, PW8,
PW10 and also the evidence of PW11 though he is the
husband of PW10, he becomes the circumstantial
evidential witness, who came to spot in the midst of the
incident. But he says that his wife of PW10 went earlier
and then he went to spot and only he went to spot in the
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middle of the incident and the same is elicited in the cross-
examination of PW11 and in the cross-examination he
admits that he came to know about the incident is
concerned after the PW1 revealed the same and hence, his
evidence not probable with regard to the eye witness to
entire incident, but evidence of PW3, PW8, PW10 and
PW31 is very specific with regard to the incident is
concerned and except the minor discrepancies in the
evidence of the prosecution witnesses and so also the
evidence of PW3 is very clear that he gave the evidence in
terms of Ex.P5 and each overt act of accused no.1,
accused no.2, accused no.4, accused no.5 and accused
no.6 is spoken by the PW3 in terms of Ex.P5 complaint.
The documentary evidence also clearly discloses that an
incident was taken place and each witness evidence
corroborates each other and no doubt, some of the eye
witnesses have turned hostile. But nothing is elicited from
the mouth of PW14 to PW20 who are the independent
eyewitnesses with regard to the incident and court has to
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take note of the evidence available on record and no doubt
these are the relative witnesses and merely because they
are the relative witnesses, their evidence cannot be
discarded and their evidence is corroborated by each of
the witnesses and with due care and caution, having
appreciated the same, prosecution has proved the case
against the accused persons, not only in oral evidence,
even in the evidence of documentary evidence of Ex.P5,
Ex.P10, Ex.P1, P10 and P12 recovery witnesses though
turned hostile, they were categorically deposed with
regard to the identification of photographs and their
photographs were also found in the said photos and
regarding seizure of the stick, axe and also the knife as
well as blood stained cloth.
151. The PW-1 and PW-2, though turned hostile, the
evidence of PW-32 categorically reveals that PW-3 only
pointed out the spot and the mahazar was drawn from
10:15 a.m. to 12:00 p.m. This Court has already pointed
out that though PW-1 and PW-2 turned hostile, the
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photographs which were confronted to them clearly depict
their presence, and they identified their photographs in
Ex.P-2 to Ex.P-4. Hence, it is evident that at the time of
conducting the mahazar both of them were very much
present. Though they turned hostile, the witnesses
examined before the Court identified the photos which
depicts their photos. The other witnesses also identified
their signature and photos of seizure of M.Os i.e., stone,
stick, stained and unstained mud. It is also important to
note that there was recovery of the clothes of Accused
No.2 ie., shirt and pant. Under mahazar between 17:45 to
18:30 hours, and at that time photographs were taken.
Ex.P-11 is the photograph wherein the witnesses'
photographs were also identified by them.
152. The weapon was seized through Accused No.1
and 7, and mahazar was drawn in terms of Ex.P-2 -- the
stick of an axe was seized from A-1 and knife from A-2. It
is also the case of the prosecution that A-7 threatened
PW-3 with the knife when he tried to rescue the victim.
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The photographs Ex.P-13 to Ex.P-16 were also identified
by PW-6 and PW-7, and though they too turned hostile,
their photographs are depicted in the said photographs,
Ex.P-13 to Ex.P-16. No explanation has been forthcoming
as to why they appeared in those photographs. In respect
of the inquest, Ex.P-9, PW-4 and PW-5 identified their
signatures on the photo of inquest and seizure of A-1's
clothes.
153. It is also important to note that PW-4
categorically deposed before the Court that he would not
sign any document without reading the same and also that
he knows reading Kannada. Hence, it is very clear that the
inquest was conducted and seizure of A-1's clothes was
also carried out in the presence of PW-4 and PW-5, who
are the mahazar witnesses. Even though they turned
hostile, the photographs clearly depict that they were very
much present. It is further important to note that the
seized clothes were sent to FSL, and the FSL
acknowledgment as per Ex.P-28 is clear. The Ex.P-50 FSL
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report also confirms that the shirt and mud contained the
AB blood group, which corroborates the recovery of A-2's
shirt and pant under mahazar Ex.P-10. Apart from that,
the torn clothes seized were also sent to FSL, and the FSL
report Ex.P-51 is very clear that presence of kerosene
residues were detected on the cloth pieces seized from the
spot. Though the witnesses identified their signatures,
they turned hostile; however, the photographs placed on
record prove their presence, and all the panch witnesses
identified their photographs in those photographs.
154. The evidence of PW-11 is also clear. Though he
came to the spot after his wife, this Court has already
pointed out that the prosecution's case was suggested to
this witness by the defence itself, and the same has been
admitted. Similarly, the evidence of PW-31 is also very
clear. She is an eye-witness to the incident and reiterated
the evidence of PW-1, PW-8 and PW-10 that the accused
persons came with deadly weapons, assaulted, dragged
and set fire on the deceased. The police also recorded her
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statement. In the cross-examination, though a suggestion
was made that she was married and given in marriage to
Srinivasapura of Hunasagi Taluk, she categorically
deposed that on the date of the incident she was very
much present, having acquaintance with the accused
persons, and further deposed that the deceased was
screaming at the spot and the accused persons were
abusing. These are the answers elicited from the mouth of
PW-31 by the defence itself. Though some witnesses
denied that Malleshappa, resident of Davanagere, was
doing kerosene business, the same was admitted. Also,
while some of the witnesses denied that Subhash
Dhannur, husband of Accused No.8, belonged to Beda
community and was resident of the same village, others
admitted the same. However, these answers relate only to
relationship and business, but nothing substantial evidence
has been elicited from the prosecution witnesses with
regard to the incident so as to discredit their evidence. The
material evidence collaborates with each other with regard
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to incident is concerned and committing the murder is
concerned.
155. The evidence of PW-3, both oral and
documentary, as well as the evidence of the doctor, is
consistent. The doctor, examined as PW-21, categorically
deposed that he had examined PW-3 and found that he
had sustained three injuries, i.e., bite injuries, linear
scratch marks on the right shoulder region, and a blood
clot on the occipital region. These observations clearly
establish the injuries sustained by PW-3, which correspond
with the wound certificate Ex.P-24. Though the counsel
appearing for the appellants would contend that PW-3 was
not present at the spot, there is no explanation on the part
of the accused persons as to how PW-3 sustained the said
injuries. Both oral and documentary evidence clearly
disclose that the accused persons committed the murder
in broad daylight at around 3:30 p.m.
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156. Though the counsel for the appellants would
contend that all the witnesses are interested witnesses,
the principles laid down in the judgments relied on by the
counsel for the appellants are clear that evidence of
interested witnesses has to be analyzed with due care and
caution.
157. Having considered the oral and documentary
evidence available on record, and though PW-14 to PW-20,
who are independent eye-witnesses, turned hostile, the
evidence available on record points out the very act of the
accused persons in committing the murder. The incident is
nothing but a case of honour killing of own daughter of
accused No.4 and sister of accused No.1 and 2, who had
eloped with PW-3, and even when she was pregnant, she
was not spared. It is nothing but bloodthirsty, inflicting
injuries with deadly weapons on the vital part of the head,
causing her to lose consciousness, then pouring kerosene,
setting her ablaze and burning her alive at the spot. The
evidence of the doctor PW.22 and injuries found in the PM
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report corresponds with nature of injuries sustained by the
deceased proves, it is a case of homicide. The evidence of
PW.22 extracted above is clear case of homicide.
158. All material clearly depicts that these accused
persons only, irrespective of their brothers, mother, sisters
and their respective husbands, committed the murder of a
girl who is aged about 21 years at the time of the incident
and burnt alive with the common object assembling each
other in furtherance of common object. The materials
clearly discloses that the same is credible and minor
discrepancies while pointing out the assault is concerned
by using of weapon and the same will not come in the very
root of the case of the prosecution and prosecution proved
beyond reasonable doubt that accused No.1 and 2 and 4
to 8 only have committed the murder. Each accused
person's overt act is specifically mentioned in the
complaint Ex.P5 as well as corroborated in the oral and
documentary evidence. Hence, I answer Point no. 1 that
Trial Court has not committed any error in coming to the
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conclusion that prosecution has proved the case against
accused No.1 and 2 and so also accused No.4 to 8.
159. This Court has also taken note of the Special
Enactment invoked on account of abusing PW-3 and the
deceased at the spot for her pregnancy by a man of the
Bedara community. All these material witnesses clearly
deposed and material available on record clearly disclose
that each of the offences invoked against the accused
persons have been proved, and hence, no other conclusion
can be arrived at so as to extend the benefit of doubt in
favour of the accused persons in respect of other offences.
Points No.2 and 3:
160. These two points are interlinked since the
appellants/accused No.1 and 2 have challenged the capital
punishment and this Court has received a reference for
confirmation of the death sentence invoking Section 366 of
Cr.P.C. Both the points are to be considered together--
whether confirmation by this Court is necessary and
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whether it is not a case falling under the 'rarest of the
rare' category to impose capital punishment. Hence, both
the points are taken together for consideration.
161. The main contention of the appellants' counsel
is that, it is not a case for imposing the capital punishment
and brought to notice of this Court the evidence available
on record particularly, those who have turned hostile and
also the evidence of interested witnesses. The counsel
vehemently contended that the trial Judge has failed to
consider the mitigating circumstances while imposing the
capital punishment and there are no materials before the
Court to show the aggravating circumstances to invoke the
death sentence. The very approach of the trial Court is
erroneous. The counsel in support of his arguments
brought to the notice of this Court the judgment of the
Hon'ble Supreme Court in the case of Vasanta Sampat
Dupare vs. Union of India and others in Writ Petition
(Criminal) No.371/2023 wherein invoked the Article 32 of
the Constitution of India assailing the continuing validity of
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the sentence of death affirmed against the petitioner and
seeks its reconsideration in the light of subsequent
legislative and judicial developments particularly, with
reference to the guidelines laid down in the case of Manoj
and others vs. State of Madhya Pradesh reported in
2023(2) SCC 353. In Vasant Sapmat Dupare's case, the
Hon'ble Supreme Court in detail discussed the other
number of cases about imposing of death sentence is
concerned and brought to the notice of this Court the
practical guidelines to collect mitigating circumstances
with regard to avoid slipping into a retributive response to
the brutality of the crime, as is noticeably the situation in
a majority of cases reaching the appellate stage. The trial
Court must elicit information from the accused and the
State, both. He also contended that guidance on mitigating
factors has to be taken note of as discussed by the Hon'ble
Apex Court in the case of Bachan Singh vs. State of
Punjab reported in (1980)2 SCC 684. The counsel also
brought to the notice of this Court discussion made with
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regard to the Article 32 jurisdiction in capital cases
constitutes a special constitutional safeguard, power to do
complete justice notwithstanding the procedural finality
and also procedural fairness in capital sentencing as an
imperative order under Articles 14 and 21 and the Hon'ble
Supreme Court extracted the paragraphs No.79 and 209 of
the judgment in the case of Bachan Singh (supra).
162. The counsel brought to the notice of this Court
the discussion made in Vasanta Sampat Dupare's case
(supra) with regard to plenary power to mould relief under
Articles 32 and 142 particularly, a discussion is made in
paragraph No.27 that we must also recognize the
evolution of our own constitutional culture. Contemporary
Indian society no longer conceives criminal punishment
purely in retributive terms. The goal of reformation,
repeatedly affirmed in our jurisprudence, presupposes that
the legal system will not foreclose the prospect of moral
regeneration unless every procedural assurance of
accuracy and fairness has first been scrupulously
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observed. The counsel referring to this judgment
contended that in this judgment, the Hon'ble Supreme
Court has discussed the judgment in the case of Kartar
Singh vs. State of Punjab reported in (1994)3 SCC 569
and contended that the right to life with human dignity of
person is a fundamental right of every citizen for pursuit of
happiness and excellence. Personal freedom is a basic
condition for full development of human personality.
Article 21 of the Constitution protects right to life which is
the most precious right in a civilized society. The counsel
referring to these judgments vehemently contended that it
is not a case for death sentence and mitigating
circumstances were not taken note of and the trial Judge
has committed an error.
163. Per contra, the learned Additional State Public
Prosecutor appearing for the State vehemently contended
that the Court has to take note of the aggravating
circumstances which have been taken note of by the trial
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Judge particularly, the following instances were given to
invoke the death sentence:
i. Child in the womb while setting the mother on
fire.
ii. The manner in which committed the murder of
the deceased.
iii. Dragged the deceased from the house and set
the fire by pouring the kerosene and burnt her
alive.
iv. Set the fire on the deceased at 3:30 p.m., in
the broad day light.
v. Assaulted the deceased with stick on her head
and as a result, she lost her consciousness.
vi. Even though she lost consciousness, the
accused poured the kerosene on her and set
the fire.
vii. By assaulting with stick restrained her
movement particularly on the head and PM
report corresponds with the nature of injuries
sustained by her before setting her on fire.
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viii. The incident of murder by setting the fire in the
presence of general public to give a message
to the society that no one should marry a
person of different religion.
ix. It is cold blooded murder and the way in which
it was committed shaken conscious of the
Court and the society at large.
164. The learned Additional State Public Prosecutor
also contended that the trial Court has taken note of all
these factors into consideration and not committed any
error in imposing the capital punishment. Therefore, the
impugned judgment of conviction and order of sentence
passed by the trial Court does not require any interference
of this Court and it requires confirmation. He also relied
upon the judgment of the Hon'ble Apex Court in the case
of Mukesh and another vs. State for NCT of Delhi reported
in AIR 2017 SC 2161 wherein the case of rape and murder
was considered.
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165. Having considered the grounds urged in the
appeal memorandum and also the reference, this Court
has to take note of the factual aspects of the case to
analyze whether the trial Court has committed an error in
imposing the capital punishment and keeping in mind the
principles laid down in the judgment referred to supra, this
Court intents to list out the factual aspects as follows:
i. It is not in dispute that the incident has taken
place in the broad day light on 03.06.2017
between 3:30 p.m. and 4:00 p.m.
ii. The accused persons went near the house of
PW.3 and the deceased with deadly weapons
like stick of the axe, stone and knife.
iii. Set the fire on the dwelling house in which
PW.3 and the deceased were staying together.
iv. The accused persons assaulted PW.3 who is the
husband of the deceased and caused the threat
not to rescue the deceased and injuries are
found in Ex.P-24-wound certificate.
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v. The accused persons dragged the deceased in
front of the house of accused No.4 and
assaulted her with stick particularly, on the
vital part of the head and as a result, she lost
consciousness.
vi. Accused No.1 went and brought the kerosene
from the house and poured on the deceased.
Accused No.2 set the fire on her and burnt her
alive.
vii. The child in the womb was between 36 to 38
weeks.
166. Now, this Court has to examine whether it is a
fit case and comes within the purview of rarest of rare
case. While considering the same, the Court has to take
note of the judgment of the Constitutional Bench of the
Hon'ble Apex Court in the case of Bachan Singh (supra)
while dealing with the capital punishment, has laid down
the guiding principles to award death penalty. The Hon'ble
Apex Court in the case of Machhi Singh and others vs.
State of Punjab reported in (1983)3 SCC 470 has
reiterated the some principle of law, which are followed by
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the Hon'ble Apex Court and also the respective High
Courts in the later judgments wherein made the principles
into two different compartments firstly, aggravating
circumstances and secondly, mitigating circumstances.
167. The mitigating circumstances enumerated in the
said judgment of the Hon'ble Apex Court are as follows:
i. The manner and circumstances in and under which
the offence was committed, for example, extreme
or emotional disturbance or extreme provocation
in contradistinction to all these situations in
normal course.
ii. Age of the accused is a relevant consideration but
not a determinative factor by itself.
iii. The chances of the accused not indulging in
commission of the crime again and the probability
of the accused being reformed and rehabilitated.
iv. 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.
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v. 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 peek of human
behaviour, in the facts of the circumstances of the
case, the accused believed that he was morally
justified in committing the offence.
vi. 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.
vii. 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.
168. The aggravating circumstances which warrant
death penalty enumerated in the judgment are:
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i. 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.
ii. The offence was committed while the offender was
engaged in the commission of another serious
offence.
iii. 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.
iv. The offence of murder was committed for ransom
or like offences to receive money or monetary
benefits.
v. Hired killings.
vi. The offence was committed outrageously for want
only while involving inhumane treatment and
torture to the victim.
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vii. The offence was committed by a person while in
lawful custody.
viii. 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.
ix. When the crime is enormous in proportion like
making an attempt of murder of the entire family
or members of a particular community.
x. 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.
xi. When murder is committed for a motive which
evidences total depravity and meanness.
xii. When there is a cold-blooded murder without
provocation.
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xiii. The crime is committed so brutally that it pricks or
shocks not only the judicial conscience but even
the conscience of the society.
169. The Hon'ble Supreme Court has further held
that the Court must strike a balance between the
aggravating and mitigating factors and see towards which
side balance of justice tilts.
170. The Hon'ble Supreme Court in latest judgment
in the case of Haresh Mohandas Rajput vs. State of
Maharashtra reported in 2011(12) SCC 56, has been
pleased to hold that the death sentence may be warranted
where the victims are children and helpless women and
the crime committed is most cruel, inhuman, extremely
brutal, and diabolic. The Hon'ble Supreme Court in the
recent judgment in the case of Rajendra Pralhadrao
Wasnik vs. State of Maharashtra reported in 2012(2) SCC
(Cri.) 30 uphold the death sentence awarded by the trial
Court in a case of rape and murder of a child aged 3 by a
person aged 31 years. The Hon'ble Supreme Court in the
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case of B.A.Umesh vs. Registrar General of High Court of
Karnataka reported in 2011(1) SCC (Cri.) 801 held that to
award death penalty, there must be something uncommon
about the crime, which renders the sentence of
imprisonment for life inadequate. The Court after drawing
balance sheet of aggravating and mitigating circumstances
to take note that the scale of justice tilts in favour of the
prosecution and there are no mitigating factors favouring
the accused to reduce the sentence and then only the
Court has to award the capital punishment if mitigating
circumstances not found in the case.
171. In the recent judgment of the Hon'ble Apex
Court in the case of K.P.Tamilmaran vs. The State by
Deputy Superintendent of Police passed in Special Leave
Petition (Criminal) No.1522/2023 dated 28.04.2025 to
strike a balance between life imprisonment as well as the
death sentence, where in a case of murder of a young
couple and both of them were administered poison in full
view of a large number of villagers. The masterminds and
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the main perpetrators of this macabre act were none other
than the father and the brother of the girl Kannagi. The
reason behind the murder of this young couple was that
Kannagi, belonging to the 'Vanniyar' community, had
dared to marry Murugesan, who was a 'Dalit' from the
same village. So, at the root of this crime is the deeply
entrenched hierarchical caste system in India, and
ironically, this most dishonorable act goes by the name of
honour-killing.
172. In the present case also, it is a case of honour
killing and the honour killing is one of the types of cultural
crimes present in the country. The honour killing is also
called as a customary killing is the murder of typically a
female, family or clan member by one or more fellow
(mostly male) family members in which the perpetrators
(potentially the wider community) believe the victim to
have brought dishonour upon the family from a clan or
community. The main reason for committing an honour
killing is the belief that any member of family has brought
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dishonour to the family. The dishonour can be of a
different type to different families. So far there is no
specific law to deal with honour killings. The murders come
under the general categories of homicide and
manslaughter, sometimes the honor killings are also done
by a mob and so when a mob has carried out such attacks,
it becomes difficulty to pinpoint the culprit. The murders
were the outcome of a social issue like a marriage with a
person of so called lower caste. However, time has come
when we have to consider the social issues relevant while
considering the death sentence. In other words, the Court
classified the shameful caste based honour killings as
different from other homicides in which the maximum
punishment of death can be awarded.
173. Having considered these factual aspects into
consideration, mitigating circumstances so also the
aggravating circumstances discussed above, this Court has
to take note that life imprisonment is normal punishment
in a case of committing a murder and the heinous offence
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and the death sentence is an exceptional and the same is
in the circumstances of diabolic and blood thirsty and the
same is against the society at large and person who has
committed the offence is not a person to live in a civilized
society and manner of crime is committed.
174. In the present case, it is to be noted that it is
an undisputed fact that the deceased i.e., sister of accused
No.1 and 2 who belonged to Muslim religion eloped with
PW.3 who belonged to a Beda community and married
him. Accused No.1 and 2 belonged to a Muslim religion. It
is also important to note that, at the first instance, a case
was registered against PW.3 for causing threat on the
deceased to lodge the complaint and the same is not
disputed when PW.3 deposed the same. Thereafter, the
deceased went along with PW.3 and both of them stayed
for sometime at Goa. When she became pregnant, they
came back to the village and both of them were living in
the same village. Whether it comes within the mitigating
circumstances or aggravating circumstances, this Court
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has to analyze the material on record. No doubt, accused
No.1 and 2 who are brothers of the deceased are aged
about 23 and 20 years respectively and they are
youngsters and the mitigating circumstance is age of
accused No.1 and 2 which is relevant consideration but not
a determinative factor by itself. But, the Court has to take
note of the material on record and having considered the
factual aspects of the case, this Court comes to the
conclusion that it is a case of rarest of rare case and
comes within the aggravating circumstances of points
No.(iii, vi, and ix to xiii).
175. This Court would like to list out the reasons for
coming to a conclusion that it is a case of aggravating
circumstances namely,
i. The deceased who was aged about 21 years
eloped with PW.3 and stayed at Goa for sometime
and when they came back to village, the accused
committed murder with the intention to create
fear psychosis in the public at large and
committed the offence in a public place by deadly
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weapon which clearly could be hazardous to the
life of more than one person since a nine-month
old fetus was in the womb of the deceased.
ii. The accused persons with an intention to take
away the life of the deceased came with deadly
weapons like stick, stone, and iron knife and there
was a premeditation before forming unlawful
assembly.
iii. All the accused persons formed themselves into
an unlawful assembly and with the common object
rushed to the house of the deceased and PW.3.
iv. The accused persons came with deadly weapons
in furtherance of common object to take away the
life. The offence was committed outrageously for
want only while involving inhumane treatment and
torture to the victims.
v. Accused No.1 and 2 are the brothers of the
deceased. Accused No.1 went and brought the
kerosene from the house and poured on his sister
when she was alive. Accused No.2 set fire when
the deceased was alive and burnt her alive even
though she was nine months' pregnant. The victim
was innocent, helpless or a person relies upon the
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trust of relationship and social norms, like a blood
relative, helpless women, inflicted by trusted
persons i.e., her brothers.
vi. Accused No.1 and 2 committed not only murder of
their sister but also committed the murder of fetus
aged around 9 months who has not seen the
world for a motive which evidences total depravity
and meanness as she married a person of Beda
community i.e., lower caste.
vii. The manner in which the accused have committed
the murder dragging the deceased in front of the
house of accused No.4 and inflicted injuries on her
head, as a result, she sustained grievous injuries
in a broad day light, before the public without
respect to the law of land. The cause of death is
also on account of the head injury and burn
injuries and this is a cold-blooded murder without
any provocation.
viii. Though the deceased lost consciousness due to
injury inflicted on the head with the stick, the
accused persons did not satisfy with the said act
and further poured the kerosene and set fire and
the crime is committed so brutally that it pricks
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and shocks not only the judicial conscience but
even the conscience of the society.
ix. It is nothing but honour killing and the same is
against the society at large and the entire world
and it gives a wrong message to the society to
continue to commit a similar crime in future if
there is any inter-religion marriage.
x. The offence was committed not for any property
or for any previous ill-will and only for honour
killing and the same affect the society at large and
the same would give a wrong message to the
society and all these factors clearly disclose that it
is nothing but aggravating circumstances. The
offence is also not for any wrongful enrichment.
xi. The incident has taken place at 3:30 p.m., in the
broad day light by dragging her in a public place
that too in front of the locality wherein general
public are residing which creates fear psychosis
and threat on the people who live in the locality
public at large. The accused persons restrained
her movement causing injury on her vital part i.e.,
head and inflicted the injury which is evident in
the PM report-Ex.P-25.
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176. Having considered all these factors into
consideration and materials available record, even this
Court has to strike balance between mitigating
circumstances and aggravating circumstances. No doubt,
accused No.1 and 2 are young aged and the same cannot
be a ground to come to a conclusion that they could be
imprisoned for life and the age is not a determinative
factor by itself and except this circumstance, there is no
other mitigating circumstances. The accused dragged the
pregnant woman aged 21 years, inflicted injuries on her
head, set fire by pouring kerosene and burnt her alive at
the spot. The act of the accused is nothing but barbaric
act. The deceased had not committed any sin in getting
married to a person belonging to a Beda community and
may be a marriage of inter-religion and the Court has to
take note of human values while imposing the death
sentence as discussed in relation to Article 21 of the
Constitution in the case of Manoj (supra). At the same
time, take note of principles laid down in the judgment of
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Bachan Singh's case and Machhi Singh's case (supra) as
well as the judgment in the case of Haresh Mohandas
Rajput (supra) where the victims are children and helpless
women and the crime is most cruel, inhumane, extremely
brutal and diabolic. The sentence of life imprisonment
renders inadequate. After considering the material on
record and drawing balance sheet of mitigating
circumstances and aggravating circumstances, the scale of
justice tilts in favour of the prosecution and there are no
mitigating circumstances favouring the accused to reduce
the sentence.
177. The trial Judge has made an observation that it
is a land of Basavanna and the same cannot be a ground
to impose the capital punishment. The Court has to take
note of the factual aspects, the manner in which the crime
is committed, that too in broad day light at 3:30 p.m., in
the presence of general public creating fear and psychosis,
it is nothing but crime against the society at large and
giving a wrong message to the society and public at large
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that no one should marry inter-caste persons or inter-
religion person and the same has to be curbed with iron
hands. Hence, we are of the view that the trial Court has
not committed any error in imposing the death sentence
and it requires confirmation as sought by the trial Judge.
Hence, we answer point No.2 in negative and point No.3 in
affirmative confirming the judgment of the trial Court
imposing death sentence.
178. In view of the discussions made above, we
proceed to pass the following:
ORDER
i. The appeals filed by accused No.1 and 2 in
Criminal Appeal No.200116/2025 and the
appeal filed by accused No.4 to 8 in
Criminal Appeal No.200176/2024 are
dismissed.
ii. Criminal R.C.No.200001/2024 is allowed
confirming the sentence of capital
punishment imposed by the Trial Court in
respect of accused No.1 and 2. Accused
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No.1 and 2 shall be hanged by their neck
till death.
iii. The judgment of conviction dated
22.04.2024 and order of sentence dated
03.05.2024 passed by the III Additional
District and Sessions and Special Judge,
Vijayapura, in Special Case (SC/ST)
No.33/2017 is confirmed.
iv. Registry is directed to furnish a copy of
this judgment to accused No.1 and 2 and
accused No.4 to 8 through Jail Authorities
free of cost and inform them of their right
to appeal to the Hon'ble Supreme Court
and transmit the trial Court records to the
trial Court along with a copy of this
judgment.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(T.M.NADAF)
JUDGE
NB,SN,NJ,SHS
CT:NI
