Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. In the same case (Deepak R<li v. St<lte of Bilmr) quoting Lord Denning, this Court further observes: – "98. On the question of striking a delicate balance between the proportionality of crime to the sentencing policy, Lord Denning '(2013)10SCC421 B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF KARNATAKA [PRAFULLA C: PANT, J.] has observed' as follows on the very purpose of imposition of a punishment: ".; .. The punishment is the way in which society expresses its ·. denunciation of wrongdoing; and, in order to maintain respect for the law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority or-citizens for them. It is a mistake to consider the objects of punishments as being a deterrent or reformative or preventive and nothing else . . . The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it, irrespective of whether it is a deterrent or not."
13. It is further submitted on behalf of the petitioner that though the testimony of the child (PW-2) aged about seven years could be sufficient for holding the petitioner guilty of offence for conviction but the death sentence should not be imposed on the basis of testimony of seven years old child. We are unable to accept this proposition. If the statement of the witness, aged seven years, has been found natural, trustworthy and without any chance of being tutored, it cannot be taken lightly as mitigating circumstances, particularly, in the facts and circumstances of the present case.
14. It is further argued by Ms. Suri that the probability that the accused would commit further criminal acts of violence and the probability that the accused cannot be reformed are the two factors which the State has not proved. It is further submitted that in the present case .if the life sentence is commuted to imprisonment for natural life of the petitioner, the above two factors would lose their significance since the petitioner is going to remain in jail for the rest of his life. It is further argued that it is not the accused who has to prove the mitigating factors but it is for the prosecution to prove that the extreme penalty of death needs to be inflicted. It is contended that the reasons given in the order sought to be reviewed are not sufficient as to why life imprisonment is an inadequate punishment.
15. Ms. Kiran Suri, learned senior counsel for the petitioner referred to the case Aftah Altmad Kltan v. State of HyderabatP, and submitted that since two of the Hon'ble Judges hearing the matter of 4 Ed.: Lord Denning, Master of the Rolls of the Court of Appeal in England, speaking to the Royal Commission on Capital Punishment in 1950 'AIR 1954 SC 436 c c [2016) 5 S.C.R. confirmation of death sentence, in the High Court, differed, as such on this ground alone, sentence of death can be commuted to imprisonment for life. However, in our opinion the case of AftabAllmad Kllan (supra), is of little help to the petitioner for the reason that in the present case the Hon 'ble Judge, who opined that the convict be awarded the sentence of imprisonment for life, himself observed that it is a case of rarest of rare category, and it was further observed by him that by making the petitioner to serve imprisoT!ment for natural life, it will be more painful for him to serve the same. Our attention is also drawn to the case of Sut/1endraraja alias Sutllentllira Raja alias Santl1an and otllers v. State tllrougll DSPICBI, SIT, Cllennai6• We have gone through the same and it is sufficient to say that the majority view in said case does not support the argument advanced on behalf of the petitioner. The learned counsel for the petitioner also invited our attention to a recent unreported decision of this Court in Tuttu Lodhi@Pancham Lodhi Vs. State of Madhya Pradesh in Criminal Appeals Nos.292-293 of 201.4 decided on September 16, 2016. In that case, the Court opined that the facts of the case did not make out a "rarest ofrare" case to confirm the death sentence. On that basis, the Court proceeded to award sentence of imprisonment for total actual period of 20 years. But the facts of present case are different. And now we would discuss the aggravating circumstances of this case.
16. Ms. Anitha Shenoy, learned counsel appearing for the respondent, pointed out following aggravating circumstances in support of maintaining the death sentence: – (i) The murder was committed by strangulating a defenseless woman, after raping her violently. (ii) The petitioner committed robbery in addition to committing rape and murder. (iii) The petitioner is not illiterate rustic villager, rather he is an ex- police official. (iv) The convict/petitioner has a criminal history of 2 I cases, with seven convictions. (v) After the incident, the emboldened accused-petitioner has committed another robbery within just two days and was arrested by the police, as proved by PW-18 Siddagangaiah and PW-20 L!l~shminarasappa. (vi) Not only the antecedents of the accused are alarming, it is also a case where the accused fled twice from lawful custody which shows no chances of his reformation. '(1999) 9 sec 323 B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF . KARNATAKA [PRAFULLA C. PANT, J. ]
17. Ms. Shenoy further submitted that the petitioner was a police. A constable who was dismissed from service on 15 .02.1997 after he was found guilty of misconduct. It is further stated that the petitioner, after escaping from judicial custody on 18. 07 .1997, has committed the crime in question on 28.02.1998 .. It is further submitted that the petitioner who committed yet another crime ofrobbery on 02.03 .1998, i.e. within two days after the present incident, was convicted in the subsequent case also on 17 .OS .1999, and said conviction was affirmed by the appellate court, and finally Special Leave Petition (Crl.) No …….. Of2011 (Crl. M.P. No. 23691) was dismissed on 09.12.2011, by this Court.
18. We have considered the mitigating and aggravating circumstances mentioned above. The following chart of history of seven convictions recorded against the petitioner is placed before us which shows that there is little hope of rehabilitation and reformation of the petitioner: – Police Crim Sessions Conviction Offences Remarks No. Station eNo. cases I ACQuittal Peenya P.S. iOl/97 9'"ACMM Convicted 454-380 RI for4 B'lore City Court CC !PC years and No.1358/97 fine of Rs.5000/- 2. uandhinagar 115197 ~rincipal Convicted 224 IPC S.I. for 2 P.S. PMFC Court, years and Bellary fine of h:No.68/98 Rs.1000/- 3. Peenya P.S. 108/98 !OTC 7, B'lore Convicted 376-392- Death B'lore City K:;ity 302 IPC sentence SC No. '25/99 4. Peenya P.S. 111/98 ~re I, B'lore Convicted 394-511 RI for7 ~'lore City City IPC years and SCNo.417/01 fine of Rs.2000/- 5. Brucept P.S. 49/98 fMFC Court Convicted 224 IPC RI for3 Bellarv Bellarv months 6. Yeshwantha 96102 l'" Tr.
Court Convicted 41 Cl.(d) RI for90 pur P.S. B'lore City days B'lore City Cr.P.C. &379- 411-224 IPC 7. Yelahanka J9/99 2MMCourt Convicted 379 IPC RI for6 0 .S. B'lore B'lore City months and City CC No.3 93 /03 fine of Rs. 1000/- c (2016] 5 S.C.R. (We have not taken note of cases in which the petitioner was acquitted. However, it is also pointed out by learned counsel for the State ofKarnataka that the cases in which the petitioner was acquitted includes Sessions Case No. 40 of2000 relating to offences punishable under Sections 366A, 379, 376, 302 and 201 read with Section 34 !PC, in which case victim was pushed into a car, and after snatching her earrings, her legs were tied, and rape was committed before committing murder. In said case, which related to the incident of06.12. l 996, petitioner was acquitted vide judgment and order dated 07.08.2004. It is further submitted by the learned counsel that after arrest of the petitioner on 17 .07 .1997, during custody in said case, on 18.Q? .1997 the petitioner escaped from jail for which he was convicted on the charge under Section 224 !PC.)
19. Having gone through the criminal history of the petitioner, we are of the view that age of 30 years (at the time of incident), in the present facts and circumstances of the case cannot be a ground to show any kind of leniency on sentence. As far as the fact as to leaving PW- 2 Suresh (seven years old child) unharmed is concerned, it is apparent that· actually the child was left unharmed not because of any compassion on the part of the petitioner. Rather he was on a hasty retreat from the · place of incident. The petitioner appears to have committed number of crimes and also escaped from the lawful custody before commission of· this crime. The worst is that the petitioner has committed crimes not only before the incident, but also within two days, subsequent to the incident, i.e. another robbery in connection with which he was apprehended by the public and handed over to the police: Taken together, all the above, reveals that the petitioner is a menace and has become threat to the society. On overall analysis of facts and circumstances of the case, gravity of the offence, and the manner in which the crime is committed read with the antecedents of petitioner who is an ex-police official, we do not find sufficient reason to review or modify the order of affirmation of death sentence in the present case.
20. Therefore, on careful comparison of aggravating and mitigating circumstances in the present case, as above, and keeping in view the principle of law laid down by this Court on the point, we are of the firm opinion that the aggravating circumstances are grave and far more serious as against the mitigating circumstances pointed out on behalf of the .Petitioner. As such, even after open hearing, we are not inclined to B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF KARNATAKA [PRAFULLA C. PANT, J.] allow the Review Petitions or modify the judgment and order passed by this Court in Criminal Appeal Nos. 285-286 of201 l dismissed by this. Court on 01-02-2011. Accordingly the Review Petition (Criminal) Nos. 135-136of2011 stand dismissed. The Criminal Miscellaneous Petitions stand disposed of. Devika Gujral Petitions disposed of.