Paragraph numbers below are the court’s original numbering, recovered from the source text.
28. Ms. Shenoy then submitted that the question relating to the reliability of an extra-judicial confession also came up for the considerati">n of this Court in Ram Singh v. Sonia & Ors. (2011) 2 S.C.R. A ((2007) 3 sec 1] in which case also the value of an extra- judicial confession made before a stranger came up for consideration and it was held that such a submission could not be accepted since in several decisions this Court had held that an extra-judicial confession made even to a stranger cannot be B eschewed from consideration if the Court found it to be truthful and voluntarily made before a person who had no reason to make a false statement. Similar was the view of this Court in Gura Singh v. State of Rajasthan [(2001) 2 SCC 205], wherein it was observed that despite inherent weakness of an extra- C judicial confession as an item of evidence, it cannot be ignored that such confession was made before a person who had no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Several other decisions on this point were referred to by Ms. Shenoy 0 which did not, however, detain us, as they are in the same vein as the decisions already cited.
29. On the question of identification which has been one of the main pillars of the prosecution case in order to weave a chain of circumstantial evidence which in clear terms pointed E towards the guilt of the accused, the prosecution examined the · minor son of the deceased, Suresh (P.W.2) and P.Ws 4, 5, 11 and 17, who were near the place of occurrence at the relevant point of time. Ms. Shenoy submitted that except for P.W.2, the minor son of the deceased who is stated to have actually seen F the accused in the room where the deceased was lying, all the other witnesses had seen the appellant at some time or the other before the commission of the crime. As far as P.W.2 is concerned, Ms. Shenoy submitted that the incident was so graphic that it left an indelible imprint in his mind and that the G evidence of all the witnesses who identified the appellant conclusively establishes the presence of the appellant in the house of the deceased at the time of the commission of rape, murder and theft and in further establishing that Umesh Reddy, the appellant is the same person who introduced himself as H Venkatesh to P.Ws.2, 4, 5, 11 and 17. B.A. UM ESH v. REGR.GEN.HIGH COURT OF KARNATAKA [ALTAMAS KABIR, J.]
30. Regarding the conducting of the Test Identification Parade by the Tehsildar, P.W.24, it was submitted that no irregularity could be pointed out on behalf of the defence to , discredit the samie.
31. The fou1h question which had been indicated by Ms. Shei'toy regarding the identification of the finger-prints taken from the handle of the steel almirah kept in the room of the deceased, where the charged offences had been committed, clearly establishes the presence of the appellant in the said room. Ms. Shenoy submitted that there was no acceptable explanation from the side of the defence to explain the finger prints of the appellant on the handle of the almirah which was in the room of the deceased. Ms. Shenoy urged that once the presence of the appellant was established in the room when and where the offences were perpetrated, the chain of circumstantial evidence was to a large extent almost complete and was completed with the recovery of the articles stolen from the room of the deceased, in the room rented to the appellant by Jayamma (P.W.17).
32. Ms. Shenoy submitted that apart from the aforesaid circumstances in commission of the offences with which the appellant had been charged, the subsequent incidents leading to the arrest of the appellant could not be discounted. Ms. Shenoy pointed out that while the offences in relation to the instant case were committed on 28.2.1998, on 2.3.1998 the appellant was apprehended by local people living in Officers' Model Colony. From the deposition of P.W.18, A.S.I. Peenya Police Station, it is revealed that on receipt of a communication from the Police Control Room that a thief had been caught by the public in S.M. Road in Officers' Model Colony, he had gone there and was informed that the thief, who was later identified as the appellant, had tried to robe the house of one Seeba by forcibly entering her house and inflicting blood injuries on her. Ms. Shenoy submitted that the evidence of P.W.18 was duly corroborated by the evidence of P.W.20, Head Constable A Laxminarasappa, attached to the Vidhan Soudha security who was present when the accused was apprehended.
33. Responding to the submissions made by Ms. Suri in support of the defence case, Ms. Shenoy submitted that the 8 minor discrepancies in the evidence of P.W.2 and P.W.17 relating to identification of the appellant and recovery of various items belonging to the deceased from the house of the appellant, could not discredit their evidence, on account of the facts that the deposition was recorded seven years after the incident had occurred. Ms. Shenoy submitted that in view of the C evidence of other witnesses, minor lapses could not and did not take away from the case as made out by the prosecution and accepted by the Trial Court as well as the High Court. Ms. Shenoy then submitted that in any event two items of jewellery, viz., the gold gundas and leg chain, which were on the body of D the deceased and had been recovered from the appellant, had been duly identified by P.W.2, Suresh. Lastly, on the question of sentence, Ms. Shenoy referred to and relied upon the various decisions of this Court beginning with Bachan Singh v. State of Punjab [(1980) 2 SCC 684] and Machhi Singh Vs. State E of Punjab [(1983) 2 sec 47.3.0], which were subsequently consistently followed in the other decisions cited by Ms. Shenoy.
34. Ms. Shenoy submitted that the constitutionality of the death penalty for murder provided in Section 302 l.P.C. and the F sentencing procedure embodied in Section 354(3) of the Criminal Procedure Code, 1973, had been considered in the case of Bachan Singh Vs. State of Punjab [(1980) 2 sec 684), on reference by a Constitution Bench of this Court and the constitutional validity of the imposition of death penalty under G Section 3021.P.C. was upheld with Hon'ble Bhagwati J., giving a dissenting judgment. The other challenge to the constitutionality of Section 354(3) Cr.P.C. was also rejected, though certain mitigating factors were suggested as under: "Dr. Chitale has suggested these mitigating factors: B.A. UMESH v. REGR.GEN.HIGH COURT OF. KARNATAKA [ALTAMAS KABIR, J.] Mitigating circilmstances.- In the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1) That the offenpe was committed under the influence of extreme mental or emotional disturbance. (2) The age of the f!Ccused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (5) That in the facts and circumstances of the case the ace.used believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination'of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct." The said mitigating circumstances as suggested by learned counsel, Dr. Chitale, were held to be relevant 'circumstances to which great weight in the determination of G sentence was required to be given.
It was also observed in the majority decision as follows : "There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot c obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over- emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with th~ sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency – a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.•
35. Ms. Shenoy submitted that the Constitution Bench was fully aware of the concern for the digoity of human life and that taking of a life through law's instrumentality ought not to be resorted to except in the rarest of rare cases, when none of the G mitigating circumstances could justify the imposition of a lesser penalty.
36. Ms. Shenoy then referred to the decision of this Court in Machhi Singh Vs. State of Punjab [(1983) 3 SCC 470], wherein a Bench of Three Judges had occasion to apply the decision in Bachan Singh's case (supra) in regard to four of A the twelve accused who were sentenced to death. This Court · rejected the appeals filed by the said accused and confirmed the death sentence awarded to three of the appellants. While confirming the death sentence awarded to the said three accused, the Court culled out certain propositions from Bachan s Singh's case, as extracted hereinbelow : "In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case: (i) (ii) (iii) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into cqnsideration along with the circumstances of the 'crime'. Life imprisonmeht is the rule and death sentence is an exception] In other words death sentence must be impos~d only when life imprisonment appears to be an,altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating G- circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between (he aggravating and the mitigating circumstances before the option is exercised."
37. This Court then went on to observe that in order to apply the said guidelines the following questions could be asked and answered: "In order to apply these guidelines inter alia the c following questions may be asked and answered: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"
38. Ms. Shenoy submitted that in the aforesaid case, the Court took into consideration the calculated and cold blooded murders of innocent defenceless women, children, veterans and E newly-married couples in an exceptionally depraved, heinous, horrendous and gruesome manner for reprisal, as a result of family feud, with a view to wipe out the entire family and relatives of the opponent, in which circumstances only death sentence and not life imprisonment would be adequate.
39. Ms. Shenoy submitted that the propositions enunciated in Bf)chan Singh's case (supra) and Machhi Singh's case (supra) have been consistently followed in subsequent cases involving death sentence with minor variations with regard to the circumstances in which the murders were committed and G mitigating factor, if any. For example, in the case of Holiram Bordoloi Vs. State of Assam [(2005) 3 SCC 793), this Court observed that there was nothing on record to show that there was any repentance by him at any point of time nor was any attempt made to give an explanation to the occurrence even H while being questioned under Section 235(2) Cr.P.C., the accused had nothing to say at the point of sentence. It was also observed that there was no spark of any kindness or compassion and the mind of the appellant was brutal and the entire incident would have certainly shocked the collective conscience of the community. On the basis of such observation, this Court held that there was no mitigating circumstance to refrain from imposing the death penalty on the appellant. Ms. Shenoy also referred to the decision of this Court in Dilip Premnarayan Tiwari & Anr. Vs. State of Maharashtra [(2010) 1 sec 775], wherein while considering confirmation of death sentence awarded to some of the accused, this Court had observed that in a death sentence matter, it is not only the nature of crime, but the background of the criminal, his psychology, his social condition and his mind set for committing the offence, were also relevant.
40. Ms. Shenoy submitted that applying the tests indicated in Bachan Singh's case (supra), the facts of the present case were not covered by any of the mitigating circumstances enunciated in the two sets of cases and all subsequent cases following the same and consequently, there could be no reason for commuting the death sentence awarded to the appellant and the appeal was, therefore, liable to be dismissed.
41. Since the conviction of the appellant is based on circumstantial evidence leading to the awarding of the death sentence to him along with his conviction under Sections 376 and 392 l.P.C., we have carefully looked into the evidence adduced by the prosecution with care and caution. That Jayashri, the mother of P.W.2, was murdered inside her house on 28.2.1998 between 4.30 and 5.00 p.m. is not disputed, nor is it disputed that P.W.2 Suresh, the son of the deceased, came back to the house after playing with his friends at about 5.00 p.m. and discovered the body of his mother lying on the ground stained with blood, with both her hands tied with a sari at one end, while the other end of the sari was tied to a window. It has also been established that after discovering his mother's body A in the above manner, Suresh went to Kusuma Shetty, a neighbour and told her what he had seen. On receiving the said _. information, Kusuma Shetty called Geetha Hegde and Lalitha Jaya and together they went to Jayashri's house with Suresh and through the window they saw Jayashri lying on the ground.
B Lalitha Jaya who was later examined as P.W.8 by the prosecution has deposed that she called Bylappa (P.W.7), a Police Constable, living in the same locality, who telephoned Papanna (P.W.9), the Inspecting Officer, who then came to the place of occurrence with Police Constable Gurudappa (P.W.6). c It also transpires from the evidence that on receiving information, P.W.14, a Police Constable working in the Dogs Squad, P.W.16, a Police Photographer and P.W.13, a Police Inspector and Finger-Prints Expert, arrived at the scene of occurrence. Thereafter, B.N. Nyamaagowda (P.W.29), the D Investigating Officer of the case, along with Papanna (P.W.9), who was a Mazahar witness, went inside the room and found the deceased Jayashri lying naked on the ground with abrasions on her body and both her hands tied in the manner indicated hereinbefore. In addition, it was also found, which E finding was also indicated in the Inquest Report that the tongue of the deceased protruded a little.
There were scratch marks on her breasts and blood oozing out of her genitals. There were also strangulation marks on her neck. That the death of the victim was homicidal has been amply proved by the Post- mortem report of the Doctor (P.W.26), who was of the opinion F that the death was due to asphyxia as a result of smothering and evidence of violent sexual intercourse and attempted strangulation. In addition, it may be added that the appellant Umesh was also examined by P.W.26 for evidence of sexual intercourse and during such examination the appellant G confessed that. he had pushed the victim and removed her cloths, tied her hands and committed theft.
42. The nature of the victim's death having been established to be homicidal in nature, it is now to be seen as H to whether the circumstantial evidence on which reliance has been placed by the trial Judge in convicting the appellant and A was also accepted by the High Court while confirming the same, makes out a complete chain of events to establish beyond all reasonable doubt that it was the appellant and the appellant alone, who could have committed the offences with which he was charged. In this r~gard, the evidence of P.W.2, Suresh, the minor son of the deceased, is of great importance, notwithstanding the fact that he was about 7 years old when the incident had occurred. He has very clearly depicted the manner – in which after returning from playing with his friends he found the appellant, who described i himself as Venkatesh uncle, c coming out of the room in whifh he and his mother lived.
He has also narrated, without any lambiguity, the statement made by the appellant that his mother being possessed by the devil, the appellant had to tie her hands and was going to call a doctor. He also disclosed that while leaving the house the accused was 0 carrying several things in a bag, including a VCR that was in the house. He also identified the accused in a T.I. Parade conducted at the Central Jail by Tehsildar (P.W.24) and also in the Court room while deposing. In addition, P. W.2 also identified a VCR, gold case watch, clock and anklets, saris and _ other things as belonging to his mother. His evidence has remained unshaken on cross-examination. The evidence of P.W.2 was corroborated by the evidence of Basvaraju (P.W.10) who lived in a rented house almost opposite to the rented house of the deceased Jayashri. He has stated that the deceased being a tenant in the opposite house was familiar to him and that the distance separating the two premises would be about 30 feet.
Although, described as a chance witness by the defence, he has explained his presence in his house at 2.00 p.m. on 28th February, 1998, having completed his work in the first shift. His explanation is quite plausible and he has stated G without hesitation that he had seen the accused coming out of the house of the deceased with a bag and proceeding towards the pipe line. He also identified the accused in Court as being the person whom he had seen coming out of Jayashri's house on the day of the incident at about 4.30 p.m. The said witness H f i [2011) 2 S.C.R. also identified the accused in the T.I. Parade conducted by the Tehsildar (P.W.24).
43. The evidence of Natesh (P .W.11) further corroborated the evidence of P.W.2 regarding the presence of the accused . 8 in the house of the deceased at the time of the incident. He too lives in a house opposite to the house of the deceased at a distance of about 50 feet. He too has been described as a chance witness by the defence, but has explained his presence in the premises at the relevant time. In his evidence he has stated that at about 4.30-5.00 p.m. he saw a person coming out of the house of the deceased and proceeding towards the pipe line. He too identified the appellant in Court as being the person who had come out of the house of the deceased on the said date. He was also one of the witnesses, who identified the appellant in the T.I. Parade conducted by P.W.24. The D evidence of P.Ws 2, 10 and 11 as to the presence of the appellant at the place of occurrence on 28.2.1998 at the relevant time has been· duly accepted by the trial Court as well as the High Court and nothing has been shown to us on behalf of the appellant to disbelieve the same.
44. In fact, the identification of the appellant by P.Ws 2, 10 and 11 is further strengthened by his identification by Jayamma (P.W.17) who has also deposed regarding the seizure of various items from the rented premises of the appellant, such as gold ornaments, suitcases, a television set and clothes.
45. Manjula (P.W.22), the elder sister of the deceased Jayashri also identified some of the articles seized by the Investigating Officer from the house of the appellant, as G belonging to her deceased sister Jayashri. Such items included a VCR, a pair of gold beads, 4 gold bangles, one pair of silver anklets and 15 to 20 silk and ordinary saris.
46. Maare Gowda (P.W.4), who had been approached by H the appellant for a rented premises and who introduced the B:A. UMESH v. REGR.GEN.HIGH COURT OF KARNATAKA [ALTAMAS KABIR, J.] appellant to Ravi (P.W.5) identified the accused Umesh Reddy A to be the same person who had approached him for a rented accommodation stating that his name was Venkatesh. He was also one of the witnesses to the seizure of various items by the Investigating Officer. He has stated that after arresting the appellant, the Peenya Police had brought him to the rented accommodation in which he was staying and on the instructions of the police inspector, the appellant opened the door .of the house with his own key, and, thereafter, upon entering the house, the police seized various items such as suitcases, saris, panties, VCR, TV and antenna, pants, shirts, ornaments and c cash. Much the same statements were made by Ravi (P.W.5), the owner of the house which had been rented out to the appellant. He corroborated the evidence of P.W.4 that the said witness had brought the appellant to him for the purpose of renting a house. P.W.5 was also a witness to the seizure.
47. Lalitha Jaya (P.W.8) who was the landlady of the deceased, corroborated the prosecution story that Suresh (P.W.2) on seeing the body of his mother lying on the ground in the room rushed to Kusuma Shetty (C.W.8), who has not, however, beer. examined by the prosecution, who rushed to E P.W.8 and told her of the incident. All of them went to the house of the deceased and saw Jayashri ly,ihg on the ground on her back through the window and thereafter they went to the house of Bylappa (P.VV.7) and informed him about the incident.
48. All th~ witnesses who claimed to be present at or near F the place of occurrence remained unshaken in cross- examination, thereby completing the chain of. circumstantial evidence in a manner that clearly indicates that no one other than the appellant committed the offences with which he was G charged. The trial Court has also relied upon the extra-judicial confession made by the appellant to Dr. Somashekar (P.W.26), who examined him as to his sexual capacity, to the effect that he had pushed down the victim, removed her clothes, tied her hands and committed theft in the ~puse. ·
49. The aforesaid position is further strengthened by the Forensic Report and that of the Finger-Print Expert to establish that the finger prints which had been lifted by P.W.13 from the handle of the steel almirah in the room, matched the finger print of the appellant which clearly established his presence inside B the house of the deceased. The explanation attempted to be given for the presence of the finger prints on the handle of the almirah situated inside the room of the deceased does not inspire any confidence whatsoever. In a way, it is the said evidence which scientifically establishes beyond doubt that the c apJkllant was present in the room in which the deceased was found after her death and had been identified as such not only by P.W.2, who actually saw him in the house immediately after Jayashri was murdered, but also by P .Ws 10 and 11, who saw him coming out of the house at the relevant point of time with the bag in his hand. The finger print of the appellant found on the handle of the almirah in the room of the deceased proves his presence in the house of the deceased and that he and no other caused Jayashri's death after having violent sexual intercourse with her against her will.
50. Apart from causing the death of the victim, the evidence also points to the commission of rape of the deceased by the appellant. That the deceased was lying naked with blood oozing out of her genitals and both her hands tied by a sari at one end clearly indicates violent sexual intercourse with the F deceased. The presence of semen-like material in her vagina, which was found during the Post-mortem examination, was collected and sent for micro-biological examination and showed the presence of sperms. The presence of spermatozoa in the vaginal smear which was sent for micro-biological examination G and the presence of blood stains at the vaginal outlet together with laceration of the vagina from the vaginal outlet on the posterior wall establishes and confirms the charge of violent sexual intercourse, viz., rape. In addition to the above, the examination of the accused by P.W.26, the doctor, who H conducted the Post-mortem examination, discloses laceration · on the inner aspect of the upper lip and inner abrasions in both lips, scratch abrasions over the right side of the face. Abrasions over the front of right shoulder and over the right side at the back . of the neck of the appellant indicated that the same could have been caused due to resistance and strengthens the case of the prosecution of forced sexual intercourse with the victim against her wishes.
51. Even after committing the above-mentioned offences, the appellant robed various articles, including jewellery and a VCR set from the house of the deceased, and even made up C _ a suitable story about his presence in the house in order to impress a young child who happened to notice him as he was leaving the house. The remorseless attitude of the appellant is further evident from the fact that after having committed such heinous offences on 28.2.1998, within two days on 2.3.1998 he attempted a 1 similar crime in the house of one Seeba and was caught by the public while trying to escape, as evidenced by P.Ws 18 and 20.
52. Ms. Suri has raised certain questions relating to the identification of the appellant by P.Ws 2, 10, 11 and 17. It has E been submitted that the picture of the appellant had been published in the newspapers after the incident. There may have been some substance in the aforesaid submission had it not been for the fact that being the immediate neighbours of the appellant, P.Ws 10 and 11 had occasion to see the appellant IF earlier. As fa~ as P.\IV.~7 is concerned, she was the appellant's landlady at the relevant point of time. The decision in Musheer Khan's case (supra) cited by Ms. Suri is npt, therefore, of any help to the appellant's case.
53. On the question of recovery of M.Os.2 to 23 from the rented premises of the appellant, though an attempt has been made to discredit the role of P.W.5 Ravi as a panch witness, we see no reason to disbelieve the same since such recovery was also witnessed by P.W.22, Manjula, the sister of the deceased, who also identified the recovered articles. [2011) 2 S.C.R.
54. As to the procedure adopted by the Investigating Officer for obtaining the finger-print of the appellant through P.W. 25 who was serving as Constable in Peenya Police Station at the relevant time, the same has been considered and dealt with by the High Court in its impugned judgment. It has been stated B that such a procedure was available under the Karnataka. Police Manual read with Section 5 of the Identification of Prisoners Act, 1920, and that it had been duly proved that the finger-print recovered from the handle of the almirah in the room of the deceased matched the right finger print of the appellant. c In that view of the matter, the submission of Ms. Suri on this point must also be rejected.
55. We, therefore, have no hesitation in confirming the conviction of the Appellant under Sections 376, 392 and 302 · IPC.
56. On the question of sentence we are satisfied that the extreme depravity with which the offences were committed and the merciless manner in which death was inflicted on the victim, brings it within the category of rarest of rare cases which merits E the death penalty, ::ts awarded by the Trial Court and confirmed by the High Court. None of the mitigating factors as were indicated by this Court in Bachan Singh's case (supra) or in Machhi Singh's case (supra) are present in the facts of the instant case. The appellant even made up a story as to his F presence in the house on seeing P.W.2 Suresh, who had come there in the meantime. Apart from the above, it is clear from the recoveries made from his house that this was not the first time that he had committed crimes in other premises also, before he was finally caught by the public two days after the G present incident, while trying to escape from the house of one Seeba where he made a similar attempt to rob and assault her and in the process causing injuries to her. As has been indicated by the Courts below, the antecedents of the appellant and his subsequent conduct indicates that he is a menace to society and is incapable of rehabilitation. The offences committed by the appellant were neither under duress nor on provocation and an innocent life was snuffed out by him after committing violent rape on the victim. He did not feel any remorse in regard to his actions, inasmuch as, within two days of the incident he was caught by the local public while committing an offence of a similar type in the house of one Seeba.
57. In such circumstances, we do not think that this is a fit case which merits any interference. The Appeals are, accordingly, dismissed and the death sentence awarded to the Appellant is also confirmed. Steps may, therefore, be taken to carry out the sentence. R.P. Appeals dismissed.