Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1473-1474 OF 2017
IRAPPA SIDDAPPA MURGANNAVAR ..... APPELLANT
VERSUS
STATE OF KARNATAKA ..... RESPONDENT
J U D G M E N T
SANJIV KHANNA, J.
The judgment under challenge, passed by the High Court of
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Karnataka at Dharwad on 6 March 2017, affirms the conviction of
the appellant – Irappa Siddappa Murgannavar – under Sections
302, 376, 364, 366A, and 201 of the Indian Penal Code, 1860 (for
short, ‘the Code’); and confirms the sentence of death for the
offence under Section 302, rigorous imprisonment for life for the
offence under Section 376, rigorous imprisonment for six years
and a fine of Rs.10,000/- with default stipulation for the offences
under Sections 364 and 366A each, and rigorous imprisonment
Signature Not Verified
Digitally signed by
Neelam Gulati
Date: 2021.11.09
11:39:29 IST
Reason:
for two years and a fine of Rs.2,000/- with default stipulation for
the offence under Section 201 of the Code. The sentences under
Criminal Appeal Nos. 1473-1474 of 2017 Page 1 of 30
Sections 376, 364, 366A, and 201 of the Code are directed to run
consecutively.
2. The case of the prosecution is that the appellant subjected the
deceased R to rape, killed her by strangulation, and then disposed
of her body, tied in a gunny bag, into the stream named
Bennihalla . As there are no eye witnesses to the commission of
the offences, in order to prove these postulations, the prosecution
has relied on three-fold circumstances: (i) that the appellant took
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away R from a neighbour’s house on 28 December 2010; (ii) that
the appellant was last seen by certain witnesses carrying R and a
gunny bag towards the Bennihalla stream; and (iii) that based on
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the disclosure statement of the appellant on 1 January 2011, the
dead body of R was recovered in a gunny bag from Bennihalla .
3. R, a girl aged 5 years and 2 months, was living with her maternal
grandfather Rangappa in village Khanapur, Taluka Nargund,
District Gadag, Karnataka while her parents worked in Mangalore,
Karanataka. Rangappa’s neighbours Venkavva Patil (PW-5) and
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her nephew Ajit Patil (PW-6) have testified that on 28 December
2010 at about 6:30 pm, R had come to their house to watch TV. At
about 6:30 pm the appellant had also come to their house. He
was talking to R and took her with him on the pretext of buying her
biscuits. Hanamappa (PW-4), who is the brother of Rangappa,
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testified that R did not return that night, and in spite of frantic
efforts, she could not be traced. The next day, he enquired at
Venkavva Patil’s (PW-5) house about R’s whereabouts, where he
was informed that the appellant had taken R with him.
Hanamappa (PW-4) lodged a missing person report re R at
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Nargund Police Station on 29 December 2010 (Exhibit P-6). This
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complaint states that on 28 December 2010, at 9 pm, he was
informed by Mallanagowda Kagadal (PW-14) that R was missing,
following which he went to his brother Rangappa’s house and
learnt from his brother’s daughter, Yallavva Mangalore (PW-23),
that R had gone to Venkavva Patil’s (PW-5) house at 6:30 pm to
watch TV, and that he, along with other people, tried locating R
but were unsuccessful. The complaint does not mention the
involvement of the appellant, a fact counted on by the counsel for
the appellant that will be addressed subsequently. Similarly,
Yallavva Mangalore (PW-23) has testified that R had gone to her
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neighbour’s house at about 6:30 p.m. on 28 December 2010 to
watch TV. As R did not return home, they had made enquiries
with their neighbour Venkavva Patil (PW-5) who had confirmed
R’s visit to her house for watching TV and that she may have
gone out. Yallavva Mangalore (PW-23) had looked for R and, on
being unsuccessful, informed her father and uncles. R could not
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be located on the said date or on 29 December 2010.
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4. Upon learning from Hanamappa (PW-4) and Yallavva Mangalore
(PW-23) that R was missing, her father Sanganabasappa (PW-1)
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and mother Shivaleela (PW-19) returned to Khanapur on 30
December 2010. Thereupon, extensive search for R was
undertaken, but she could not be found. Sanganabasappa (PW-1)
has stated that he was told by Bhimappa Talawar (PW-8),
Hanamappa Talawar (PW-10) and others that they had seen the
appellant carrying his daughter somewhere. He had then made a
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complaint at the Nargund Police Station on 1 January 2011 at
12:30 a.m. (Exhibit P-1), which we would subsequently refer to.
Hanamappa (PW-4) has similarly testified that he had learnt from
village residents Bhimappa Talawar (PW-8), Gadigeppa Talawar
(PW-9) and Hanamappa Talawar (P-10) that they had seen the
appellant carrying R on his shoulder and going towards the
Bennihalla stream. Thereafter, he went to the police station and
informed the police about the possible involvement of the
appellant. On similar lines, Venkavva Patil (PW-5) has deposed
that she learnt from the police that Yallappagouda Kagadal (PW-
7), Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) and
Hanamappa Talawar (P-10) had seen the appellant carrying a
gunny bag and the deceased R, walking towards the stream.
These evidences, further elaborated below, have been adduced
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by the prosecution to establish that the appellant was seen
carrying R and a gunny bag and walking towards the stream.
5. Yallappagouda Kagadal (PW-7), in his sworn statement, confirms
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the prosecution version that on 28 December 2010 at about 8:30
p.m. while he was standing near his house, he saw the appellant
carrying a child (who was wearing a frock) and a gunny bag, going
through the bus stand road. He thought that the appellant was
taking the said girl to her house. Subsequently he had informed
others and learnt from Bhimappa Talawar (PW-8), Gadigeppa
Talawar (PW-9) and Hanamappa Talawar (PW-10) that they too
had seen the appellant carrying a girl child with him at about 8:30
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p.m. on 28 December 2010. Bhimappa Talawar (PW-8),
Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10), in
their depositions, have corroborated that they had seen the
appellant carrying a girl on his shoulder and a gunny bag at 8:30
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p.m. However, they have stated that the sighting was on 30
December 2010. We shall examine this inconsistency and
variance of the date subsequently.
6. Ajit Patil (PW-6), in his testimony, has stated that they had
searched for the appellant but he had left the village. This had
also been a factor, along with others, contributing to the suspicion
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that the appellant had kidnapped R with an intention to rape and
kill her.
7. The investigating officer B. Vijaykumar (PW-24) has stated that he
had taken charge of the investigation from PSI S.S. Kamathagi
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(PW-25) on 1 January 2011. He searched for the appellant and
subsequently arrested him on the same day in front of one
Goudappagouda Hanamantagouda Kagadal. The date and time of
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arrest as shown in the chargesheet are 1 January 2011 at 4:30
am. B. Vijaykumar (PW-24) has testified that the appellant, upon
arrest, had made a disclosure statement (Exhibit P-17), wherein
he has stated, inter alia , that he inserted the body of R into a bag
with two stones, tied the mouth of the bag and threw it into the
waters of Bennihalla . Based on the disclosure statement, the
appellant was taken to Bennihalla near the field of one
Shrinivasreddi Ramanagouda Hosamani (PW-15) where he
showed the place where he had thrown the dead body of R. On
similar lines, Rajesab Nadaf (PW-11) and Shankrappa Tadasi
(PW-12), in almost identical testimonies, have deposed that the
appellant had shown the spot in Bennihalla where he had
submersed the body of R tied in a gunny bag along with two
stones. On directions of the police, they dived into the water and
discovered a gunny bag, which contained the dead body of R,
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along with two stones. The stones were identified by Rajesab
Nadaf (PW-11) and Shankarappa Tadasi (PW-12) and marked
MO.1 and MO.2 while the gunny bag was marked MO.3 and the
frock worn by R was marked as MO.4. The version asserted by
Rajesab Nadaf (PW-11) and Shankarappa Tadasi (PW-12) is
affirmed by the panch witnesses. It is also avowed by
Shrinivasreddi Ramanagouda Hosamani (PW-15) that the police
had asked two persons to enter the water, who found a sack near
the pipe connected to his pump set. The sack was opened to find
the dead body of R along with two stones. The prosecution has
laid reliance on these depositions to evidence that the dead body
of R was recovered from the stream based on the disclosure
statement made by the appellant.
8. Having noted the witness statements and evidence relied upon by
the prosecution to prove the circumstances of commission of the
offences, we would examine the implication of the discrepancies
in the statements of witnesses and the prosecution case, which
the counsel for the appellant submits, establish that the
prosecution has failed to prove the case against the appellant
beyond reasonable doubt.
9. The first discrepancy alleged is predicated on the testimony of
Hanamappa (PW-4) and Yallava Mangalore (PW-23) vis-à-vis the
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testimony of Venkavva Patil (PW-5) and Ajit Patil (PW-6)
regarding the presence of the appellant in the house of Venkavva
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Patil (PW-5) on 28 December 2010 at 6:30 p.m. Counsel for the
appellant submits that the assertion that appellant took R with him
on the pretext of getting her biscuits is an afterthought and
contrived evidence. In this regard, he places reliance upon Exhibit
th
P-6, i.e. the complaint filed by Hanamappa (PW-4) on 29
December 2010 at 5:00 p.m., which makes no mention of the
presence of the appellant at the residence of Venkavva Patil (PW-
5) and Ajit Patil (PW-6) or that he had taken R with him, in spite of
averments in witness statements that the factum of the appellant
taking R with him had been communicated to Hanamappa (PW-4)
before filing of the complaint. Reliance is also placed on the
testimony of PSI S.S. Kamathagi (PW-25) who claims that he had
visited the village after recording the complaint (Exhibit P-6) and
made efforts without success to trace R. Our attention was drawn
to the FIR (Exhibit P-22) recorded on the basis of statement made
st
by Sanganabasappa (PW-1) in the intervening night of 31
st
December 2010 and 1 January 2011. The FIR mentions that
Venkavva Patil (PW-5) and Ajit Patil (PW-6) had informed
Sanganabasappa (PW-1) that the appellant had taken R with him,
and that Sanganabasappa (PW-1) came to know of this fact only
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on 30 December 2010. The counsel for the appellant has argued
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that Venkavva Patil (PW-5) and Ajit Patil (PW-6) did not name the
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appellant though R was missing from 6:30 p.m. onwards on 28
December 2010, and the first mention of the appellant’s
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involvement surfaces only in the FIR dated 1 January 2011.
Therefore, the evidence of ‘last seen’ propounded and based on
depositions by Venkavva Patil (PW-5) and Ajit Patil (PW-6) is
shaky and doubtful.
10. Khanapur is a small village, secluded and away from urban areas
or other habitations, which is apparent from the fact that the
closest police station is located about nineteen kilometres away.
Hanamappa (PW-4) who had made the police complaint (Exhibit
th
P-6) on 29 December 2010, and his neighbours Venkavva Patil
(PW-5) and Ajit Patil (PW-6) are village dwellers and simple
people. Village communities are close-knit, and given the
camaraderie, faith and trust amongst the known villagers,
Hanamappa (PW-4), Venkavva Patil (PW-5) and Ajit Patil (PW-6)
may not have initially suspected the appellant’s foul play in
disappearance of R. The complaint (Exhibit P-6) is short and brief;
while mentioning that R was missing, it does not record that she
may have been raped and killed by someone. This is also evident
from Hanamappa’s (PW-4) cross-examination wherein he has
stated that at the time of filing of the complaint, he did not know
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whether the appellant had committed an offence. Noticeably, the
implication as to the involvement of the appellant was made
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shortly thereafter, that is on 31 December 2010. By then the
entire village was in a state of alarm and wary that a terrible crime
had been committed by someone from the village. Yallappagouda
Kagadal (PW-7), Bhimappa Talawar (PW-8), Gadigeppa Talawar
(PW-9), and Hanamappa Talawar (PW-10) had come forward and
stated that they saw the appellant carry a child towards
Bennihalla . The appellant, a driver by profession, had gone
missing according to Ajit Patil’s (PW-6) testimony. Therefore,
mere non-inclination to straight-away accuse the appellant who
was apparently close to Venkavva Patil (PW-5) and Ajit Patil (PW-
6) and had come to their house to watch television, should not be
a ground to thrust aside Hanamappa’s (PW-4) version as he had
not named the appellant, or depositions of Venkavva Patil (PW-5)
and Ajit Patil (PW-6) that R had left with the appellant. One could
accept that there could be some exaggeration in the statements of
Venkavva Patil (PW-5) and Ajit Patil (PW-6) to the extent that they
had heard the appellant conversing with R and that he had taken
her away on the pretext of giving her a biscuit, but this would not
in any manner affect the factum that the appellant and the victim
R were present in the house of Venkavva Patil (PW-5) and Ajit
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Patil (PW-6) at 6:30 p.m. on 28 December 2010 where they had
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gone to watch TV. It would be rather imprudent to hold that the
appellant had not visited the house of Venkavva Patil (PW-5) and
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Ajit Patil (PW-6) on 28 December 2010 at 6.30 p.m., when R was
also present, and that the appellant had left taking R with him.
11. It would be apposite to pay minute attention to the testimonies of
Yallappagouda Kagadal (PW-7), Bhimappa Talawar (PW-8),
Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10).
These villagers again had no reason to suspect that the appellant,
who was carrying a child on his shoulder, was guilty of a criminal
act of rape and murder or that he was carrying a gunny bag on his
shoulder for the purpose of dumping the victim’s body in the
stream. This is understandable from the statement of
Yallappagouda Kagadal (PW-7) according to which he assumed
that the appellant was taking the girl to her home. The situation
changed rapidly thereafter, as is duly reflected in the statement
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made by Sanganabasappa (PW-1) on the intervening night of 31
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December 2010 and 1 January 2011 wherein he has cast
suspicion on the appellant. The statement reflects the anger of
people in a rural environment as faith had given way to disbelief.
By that time, villagers had not been able to locate R who was last
seen with the appellant, who in turn had been spotted carrying a
child and a gunny bag, and therefore, they suspected that R had
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been raped and killed. There appeared no other reason for R to
have vanished and disappeared, she being a girl aged only about
five years who had gone to a neighbour’s house to watch TV in
the evening. The statement of PSI S.S. Kamathagi (PW-25) has
not in any way contradicted the prosecution version or the
testimonies of Sanganabasappa (PW-1), Hanamappa (PW-4),
Venkavva Patil (PW-5), Ajit Patil (PW-6), Yallappagouda Kagadal
(PW-7), Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9),
Hanamappa Talawar (PW-10), and Yallava Mangalore (PW-23).
12. We would now examine the date discrepancy in the court
testimonies of Yallapagouda Kagadal (PW-7), Bhimappa Talawar
(PW-8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar
(PW-10), and consider the contention of the counsel for the
appellant that Yallapagouda Kagadal (PW-7), Bhimappa Talawar
(PW-8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar
(PW-10) are planted witnesses. Yallappagouda Kagadal (PW-7) in
his testimony has clearly stated that he had seen the appellant
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carrying a girl on his shoulder at about 8:30 p.m. on 28
December 2010. Contrary to Yallapagouda’s (PW-7) statement
relating to the date of sighting, Bhimappa Talawar (PW-8),
Gadigeppa Talawar (PW-9), and Hanamappa Talawar (PW-10),
have deposed that they had seen the appellant with a gunny bag
Criminal Appeal Nos. 1473-1474 of 2017 Page 12 of 30
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and a girl child on his shoulder on 30 December 2010 at about
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8:30 p.m. This date – 30 December 2010 – has been repeatedly
mentioned by Bhimappa Talawar (PW-8) and Hanamappa
Talawar (PW-10) and once by Gadigeppa Talawar (PW-9). The
counsel for the appellant has harped on the inconsistency of these
dates. On the other hand, the State has contended that this
contradiction should have been put to the witnesses in question in
their cross-examination by the defence. We would have to reject
the contention raised by the State as untenable and fallacious. It
is an accepted position that the defence is entitled to rely upon
contradictions in ocular evidence furnished by the eye-witnesses
and highlight any incongruity between their versions and the
prosecution’s case. It is not a universally affirmed position that the
witnesses must be confronted by the defence to seek advantage
of the contradictions.
13. On the aspect that Yallapagouda Kagadal (PW-7), Bhimappa
Talawar (PW-8), Gadigeppa Talawar (PW-9) and Hanamappa
Talawar (PW-10) are planted witnesses, at first we take note of
the site map (Exhibit P-8) which indicates the place/location where
Yallappagouda Kagadal (PW-7) resides and also the pathway
from the village to the stream, which is about a kilometre long.
Shrinivasreddi Ramanagouda Hosamani (PW-15) has deposed
Criminal Appeal Nos. 1473-1474 of 2017 Page 13 of 30
that there being waste shrubs next to his field on the banks of
Bennihalla , it was difficult to go to the stream through the shrubs.
Next to his land, lie the fields belonging to others, beyond which
there was a graveyard where people did not usually visit at odd
hours.
14. Secondly, we see good and sound reasons to believe that the
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date 30 December 2010 deposed to by Bhimappa Talawar (PW-
8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10)
is on account of failure to recollect the exact date when they had
seen the appellant with a gunny bag and the girl on his shoulder,
and not on account of false deposition on the factum that the
appellant was seen carrying the child at about 8:30 p.m. The
witnesses are village residents and as their evidence was
recorded nearly a year after the occurrence, they may not have
possibly remembered the date of sighting, for the reason that
dates, especially those in the Gregorian calendar, may not be of
much relevance or consequence in the rural areas.
15. Furthermore, what has weighed with us is the undisputed fact that
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on 29 December 2010, Hanamappa (PW-4) had filed a missing
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person report (Exhibit P-6) at about 5:00 p.m. On 30 December
2010, the parents of R, Sanganabasappa (PW-1) and Shivaleela
(PW-19) had also reached the village. In case Bhimappa Talawar
Criminal Appeal Nos. 1473-1474 of 2017 Page 14 of 30
(PW-8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar
(PW-10) had seen the appellant carrying the girl child on his
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shoulder on 30 December 2010, they would have immediately
accosted him and questioned him about the girl, for by then the
disappearance of R had become common knowledge for all
villagers. Therefore, the date on which Bhimappa Talawar (PW-8),
Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10)
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saw the appellant with the small girl on his shoulder was not 30
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December 2010. Rather, 30 December 2010 was the date on
which these witnesses had informed other villagers that they had
seen the appellant carrying a small girl on his shoulder about two
days earlier. On a careful scrutiny of the statements made by
Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) and
Hanamappa Talawar (PW-10), it becomes apparent that they had
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met Sanganabasappa (PW-1) on 30 December 2010 and
informed him about their sighting. The inconsistency of dates,
thus, can be explained as inadvertence or strained memory due to
passage of time, not resulting in displacing the case against the
appellant that the prosecution has made out.
16. On the question of recovery of the dead body on the basis of the
appellant’s disclosure statement, we have referred to the
statements of Gadigeppa Talawar (PW-9), Hanamappa Talawar
Criminal Appeal Nos. 1473-1474 of 2017 Page 15 of 30
(PW-10), Rajesab Nadaf (PW-11), Shankarappa Tadasi (PW-12),
Shrinivasreddi Ramanagouda Hosamani (PW-15) and B.
Vijaykumar (PW-24). There is no room left for doubt that recovery
of the dead body of R was based on the appellant’s statement.
The dead body was concealed in a gunny bag with two stones
and immersed in the stream which had about midriff-high water.
The fact that Gadigeppa Talawar (PW-9) and Hanamappa
Talawar (PW-10) had deposed on almost identical lines does not,
in any way, reflect a discrepancy, but rather a possible lapse on
the part of the court recording their evidence. In Shanti Devi v.
1
State of Rajasthan , this Court had considered the factum of
recovery of the body of the deceased at the instance of the
accused as a strong circumstance for conviction of the accused.
2
Similarly, in Ranjit Kumar Haldar v. State of Sikkim , recovery of
dead body based on the disclosure statement of the accused was
considered a very strong incriminating circumstance against her to
maintain her conviction.
17. This brings us to the medical evidence and the question whether it
supports the prosecution version that R was raped and murdered
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on 28 December 2010. Dr. Girish Maraddi (PW-20) had
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conducted the post mortem examination of R on 1 January 2011
1
(2012) 12 SCC 158, at para 17.
2
(2019) 7 SCC 684
Criminal Appeal Nos. 1473-1474 of 2017 Page 16 of 30
at 10:00 a.m. His report is detailed and refers to cut lacerated
wound over the vagina, anteriorly upto urethra, and the ruptured
hymen. There was also soft tissue injury of the neck interiorly.
18. The report also states that the cause of death was asphyxia
caused by strangulation and not due to drowning. To confirm the
said position, PW-20 had conducted the lung floating test. The
post mortem report states that the body was slightly decomposed
and the skin had also peeled all over the body. Small and large
intestines, as well as the lungs, were congested. The inquest
panchnama (Exhibit P-2) records that the face seemed swollen
and the skin on the body seemed to be torn here and there. It had
also become black at some places. The body had swollen from
neck to waist, and at some places the skin was torn and had
turned black in colour. Similarly, legs had swollen and the skin
had torn, turning black. The post mortem report (Exhibit P-11)
records the time of death as 72-86 hours before the examination.
This would corroborate with the prosecution version that R was
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raped and murdered on 28 December 2010.
19. To affirm our opinion as to the time of death we have studied the
opinion expressed in Modi’s Textbook of Medical Jurisprudence
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and Toxicology, 25 edition (2016), Chapter XV – ‘ Post Mortem
Changes and Time of Death ’. At page 352, the treatise observes
Criminal Appeal Nos. 1473-1474 of 2017 Page 17 of 30
that the rate of putrefaction of body in water is more reliable than
of body exposed to air as the temperature in water is more
uniform and the body is protected from air. Ordinarily, the body
takes twice as much time in water as in air to undergo the same
degree of putrefaction. The process is retarded, when a body is
lying in deep water and is well-protected by clothing. However, it
is hastened when the body is lying in water contaminated with
sewage. Flotation of body takes place when gases of
decomposition or putrefaction develop within the submerged
body. In India, submerged body comes to the surface within 24
hours in summer and within two to three days or more, and
sometimes in more than a week, in winter. In temperate climates a
submerged body floats within a week in summer and in about a
fortnight in winter. Power of flotation of a decomposed body is so
great that in certain cases it may float to the surface in spite of
being weighted with a heavy stone. The duration required for
flotation of body depends upon the age, sex, the condition of the
body, season of the year and water. Bodies which are light in
weight have low specific gravity and, therefore, float sooner.
20. In the context of the present case, there is no dispute that the
occurrence had taken place in late December, that is, in winter.
We have undertaken a check to ascertain the temperature range
Criminal Appeal Nos. 1473-1474 of 2017 Page 18 of 30
in the village in late December. As per data, the temperature in
the month of late December in Nargund (the taluka in which
Khanapur village is located) is between 19 to 29 degrees, and the
temperature in water would be certainly lower. Thus, it is clear that
putrefaction of the body was retarded. But the body had not
floated and risen to the surface. The fact that the body was
swollen and was slightly decomposed, while the skin was
discoloured, would indicate that the putrefaction process had
indeed started. The post mortem report and the inquest
panchnama , therefore, confirm the date when the crime was
committed and fully corroborate and support the ocular evidence
of Sanganabasappa (PW-1), Hanamappa (PW-4), Venkavva Patil
(PW-5), Ajit Patil (PW-6), Yallapagouda Kagadal (PW-7),
Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9),
Hanamappa Talawar (PW-10), Rajesab Nadaf (PW-11),
Shankarappa Tadasi (PW-12), Shrinivasreddi Ramanagouda
Hosamani (PW-15) and B. Vijaykumar (PW-24).
21. On an overall view of the evidence and witness statements
adduced by the prosecution, the chain of circumstances
affirmatively establishes the guilt of the appellant. Though the
counsel for the appellant has painstakingly sought to highlight
contradictions and inconsistencies in the prosecution’s case, we
Criminal Appeal Nos. 1473-1474 of 2017 Page 19 of 30
believe that the same do not create a reasonable doubt in the
mind of this Court. The five-fold test prescribed by Fazal Ali J. in
3
Sharad Birdhichand Sarda v. State of Maharashtra are
satisfied as the circumstances relied upon are fully established;
they are conclusive in nature and tendency; the chain of evidence
is so complete as not to leave any reasonable ground for
conclusion consistent with the innocence of the appellant; the
facts established are consistent only with the hypothesis of the
guilt of the accused and exclude every hypothesis except the one
proved. The decision of the High Court as well as the District and
Sessions Court convicting the appellant for rape and murder of R
etc., thus, is upheld.
22. Having established the culpability of the accused, we shall
proceed to examine the issue of sentencing. As noted previously,
the appellant has been sentenced to death for the offence under
Section 302, which sentence has been confirmed by the High
Court, along with prison sentences as set out in paragraph 1 of
this judgment.
23. The impugned judgment reveals extensive study of case-law on
part of the High Court in considering the death sentence imposed
by the trial court. On an overall view of the facts and
3
(1984) 4 SCC 116
Criminal Appeal Nos. 1473-1474 of 2017 Page 20 of 30
circumstances of the matter, the High Court was of the opinion
that the sentence of death should be confirmed, that there were
no mitigating circumstances to be found, and that there were
many aggravating circumstances as the appellant was known to
R, who reposed complete trust and faith in him and willingly
allowed him to take her along, but she was raped and murdered in
the most gruesome manner and her body was dumped into the
stream. The court observed that “… when an innocent and
helpless girl of 5 was subject to such a barbaric treatment by a
person who was in a position of her trust, his culpability assumes
the proportion of extreme depravity and arouses a sense of
revulsion in the mind of an ordinary person .” The motivation of the
appellant, the vulnerability of the deceased R, the enormity of the
crime and the execution thereof, the Court considered the case as
falling in the “rarest of the rare” category, and warranting the
sentence of death to deter others from committing atrocious
crimes, and to give emphatic expression to society’s abhorrence
of such crimes.
24. Challenging the order on sentence, the appellant has argued that
by passing a common order on conviction and sentencing, the
High Court has contravened Section 235(2) of the Code of
Criminal Procedure, 1973 (for short, ‘CrPC’) by not hearing the
Criminal Appeal Nos. 1473-1474 of 2017 Page 21 of 30
petitioner separately on sentencing. He has also submitted that
the High Court failed to call for mitigating circumstances, that
there were no aggravating circumstances, that the case does not
fall into the category of ‘rarest of the rare’, that the appellant was
only 25 years old who could be reformed and rehabilitated and is
not likely to be a menace to the society, that the appellant has
undergone a lengthy period in custody, that there is no material to
suggest that the option of awarding life sentence was
unquestionably foreclosed, and that death sentence should
ordinarily be awarded when there is no other alternative left. In
addition to the aforesaid, counsel for the appellant has also listed
mitigating factors for commutation of death sentence to life
imprisonment as under:
“1) The murder was not committed in pre-planned
manner. Though rape on a child of 5 years is itself a
grave crime, the manner of the committing the crime
cannot be said to be gruesome or diabolical.
2) There is no material led by the prosecution to show
that the accused cannot be reformed. The State has
not brought material to show that the accused is a
continuing threat to society and the option of imposing
life sentence is unquestionably foreclosed.
3) Young age of the accused is a mitigating factor.
4) Lack of criminal antecedent is a mitigating factor.
5) Conduct in jail has to be considered.
6) Social economic back ground has not been
considered, including poverty and lack of education.
Criminal Appeal Nos. 1473-1474 of 2017 Page 22 of 30
7) Perhaps the accused, being unaware of his right to
lead evidence of mitigating circumstances, did not
request for time for producing material on this aspect.
Though it would not vitiate the sentence, there is
sufficient material before this Hon’ble Court for making
a further inquiry into the mitigating circumstances.
8) The accused is in death row for last 9 years since
the judgment of trial court on 08.03.2012.”
The counsel for the appellant has drawn our attention to a
certificate issued by the Gandhi Research Foundation, Jalgaon
which states that the appellant had participated in the ‘Gandhi
Vichar Sanskar Pariksha’ 2017-18 organised by the Gandhi
Research Foundation, Jalgaon. It appears from the website of the
Foundation that it conducts a country-wide examination called
“ GVSP (Gandhian Values for Sustainable Peace - Gandhi Vichar
Sanskar Pariksha) to inculcate among the young generation the
nd
art of nonviolence in daily life .” Another certificate dated 22
December 2016 issued by the Yogavidya Gurukul, a research
institute recognised by Pune University, states that the appellant
has successfully completed the course Yoga Pravesh. We have
th
also taken on record the letter dated 4 September 2021 from
Medical Officer, Central Prison Hospital, Belagavi addressed to an
advocate, stating that the appellant has been diagnosed with Oral
Generalised Sub-Mucosal Fibrosis which is in premalignant
condition.
Criminal Appeal Nos. 1473-1474 of 2017 Page 23 of 30
25. The statement of objection filed by the respondent State in the
present appeal seeks to draw force from the observations of the
High Court noted above. In addition, the respondent State has
defended the death sentence on the grounds that the actions of
the appellant constitute a grave and uncommon crime
endangering the moral fabric of the society. The submission is
that the matter falls in the category of ‘rarest of the rare’ cases as
the appellant, under the pretext of giving biscuits, committed rape
and murder of a five-year old girl, and threw her dead body into
the stream. The deceased R could not have provided resistance,
much less provocation for the crime. Relying on the data compiled
by the National Crime Records Bureau which shows that an
average of 77 acts of rape were committed daily in India in the
year 2020, the counsel has sought a deterrent penalty for the
actions of the appellant.
26. A perusal of pages 186 and 187 of this appeal would show that on
the same day as conviction, the trial court imposed death
sentence vide a common order. The appellant has submitted that
this is in violation of Section 235(2) of the Code of Criminal
Procedure, which mandates that the accused must be heard on
4
sentence. In Santa Singh v. State of Punjab , when the accused
4
(1976) 4 SCC 190
Criminal Appeal Nos. 1473-1474 of 2017 Page 24 of 30
was convicted and sentenced to death by one single judgment, a
2-judge bench of this court found that there was infraction of
Section 235(2) of the Code of Criminal Procedure and set aside
the sentence and remanded the matter to the Sessions Court. The
aspect of remand was considered by a 3-judge bench in Dagdu
5
and Others v. State of Maharashtra , wherein it was observed
that the failure on the part of the trial court to hear the accused on
sentencing does not necessarily entail a remand to that court. If
the trial court has failed to do so and the accused challenges the
same before the higher court, it would be open to the higher court
to remedy the breach by giving a hearing to the accused on the
question of sentence. More precisely, Goswami J. in Dagdu
(supra) observed:
“Whenever an appeal court finds that the mandate of
Section 235(2) CrPC for a hearing on sentence had
not been complied with, it, at once, becomes the duty
of the appeal court to offer to the accused an
adequate opportunity to produce before it whatever
materials he chooses in whatever reasonable way
possible.”
Analysing several decisions of this Court on this issue, Uday
U. Lalit, J., in Shatrughna Baban Meshram v. State of
6
Maharashtra , observed that merely on account of infraction of
Section 235(2) of the Code of Criminal Procedure, the death
5
(1977) 3 SCC 68
6
(2021) 1 SCC 596
Criminal Appeal Nos. 1473-1474 of 2017 Page 25 of 30
sentence ought not to be commuted to life imprisonment. But in
light of the principle laid down in Dagdu (supra), we have afforded
adequate and sufficient opportunity to the appellant to place all
the relevant materials on record before us.
27. In Shatrughna Baban Meshram (supra), 67 judgments of the
Supreme Court in the previous 40 years were surveyed wherein
death sentence had been imposed by the trial court or the High
Court for the alleged offences under Sections 376 and 302 of the
Code, and where the age of victims was below 16 years. It was
noticed that:
“35.1. Out of these 67 cases, this Court affirmed the
award of death sentence to the accused in 15 cases.
In three (at Sl. Nos. 26-A, 33-A and 41-A) out of said
15 cases, the death sentence was commuted to life
sentence by this Court in review petitions. Out of
remaining 12 cases, in two cases (where review
petitions were heard in open court in terms of law laid
down in Mohd. Arif v. Supreme Court of India),
namely, in cases at Sl. Nos. 51-A and 65-A, the death
sentence was confirmed by this Court and the review
petitions were dismissed. Thus, as on date, the death
sentence stands confirmed in 12 out of 67 cases
where the principal offences allegedly committed were
under Sections 376 and 302 IPC and where the
victims were aged about 16 years or below.
35.2. Out of these 67 cases, at least in 51 cases the
victims were aged below 12 years. In 12 out of those
51 cases, the death sentence was initially awarded.
However, in 3 cases (at Sl. Nos. 26-A, 33-A and 41-A)
the death sentence was commuted to life sentence in
review.”
It appears from the above data that low age of the victim has
not been considered as the only or sufficient factor by this Court
Criminal Appeal Nos. 1473-1474 of 2017 Page 26 of 30
for imposing a death sentence. If it were the case, then all, or
almost all, 67 cases would have culminated in imposition of
sentence of death on the accused. In the case of Bantu alias
7
Naresh Giri v. State of Madhya Pradesh , where the appellant
was accused of raping and murdering a six year old girl, this court
noted that though his act was heinous and required
condemnation, but it was not rarest of the rare, so as to require
the elimination of the appellant from the society. There too, there
was nothing on record to indicate criminal antecedents of the
appellant or to show that he would be a grave danger to the
society.
28. The learned trial court has recorded that the death sentence was
awarded on the ground that “ the crime was committed in an
extremely diabolical manner and that it was cruel, barbaric and
revolting .” It has been rightly pointed out by the counsel for the
appellant that the trial court merely noticed that the appellant was
of young age (23 / 25 years) belonging to a very poor family, but
has not considered these as mitigating factors. The High Court
has noted that there are no mitigating circumstances at all. We
find this observation incorrect. To begin with, it is clear that the
appellant had no criminal antecedents, nor was any evidence
7
(2001) 9 SCC 615
Criminal Appeal Nos. 1473-1474 of 2017 Page 27 of 30
presented to prove that the commission of the offence was pre-
planned. As submitted by the counsel for the appellant, there is no
material shown by the State to indicate that the appellant cannot
be reformed and is a continuing threat to the society. On the
contrary, it can be seen from the Death Sentence Prisoner
th
Nominal Roll dated 17 July 2017 issued by the Chief
Superintendent, Central Prison, Belgaum, that the conduct of the
appellant in jail has been ‘satisfactory’. We would consider the
appellant’s conduct in prison as expiation for his past deeds, also
reflecting his desire to reform and take a humane turn.
Furthermore, the young age of the appellant at the time of
8
commission of the offence (23 / 25 years), his weak socio-
9 10
economic background, absence of any criminal antecedents,
11
non pre-meditated nature of the crime, and the fact that he has
spent nearly 10 years 10 months in prison have weighed with us
as other extenuating factors, which add up against imposition of
death penalty which is to be inflicted only in rarest of the rare
cases. The respondent State has not shown anything to prove the
likelihood that the appellant would commit acts of violence as a
continuing threat to society; per contra , his conduct in the prison
8
Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652
9
Mulla v. State of U.P., (2010) 3 SCC 508
10
Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652
11
Mohan v. State of T.N., (1998) 5 SCC 336; Akhtar v. State of UP, (1999) 6 SCC 60
Criminal Appeal Nos. 1473-1474 of 2017 Page 28 of 30
has been described as satisfactory. There is no doubt that the
appellant has committed an abhorrent crime, and for this we
believe that incarceration for life will serve as sufficient
punishment and penitence for his actions, in the absence of any
material to believe that if allowed to live he poses a grave and
serious threat to the society, and the imprisonment for life in our
opinion would also ward off any such threat. We believe that there
is hope for reformation, rehabilitation, and thus the option of
imprisonment for life is certainly not foreclosed and therefore
acceptable.
29. Thus, we find sufficient mitigating factors to commute the
sentence of death imposed by the Sessions Court and confirmed
by the High Court into imprisonment for life, with the direction that
the appellant shall not be entitled to premature release/remission
for the offence under Section 302 of the Code until he has
undergone actual imprisonment for at least thirty (30) years. While
maintaining other sentences, we direct that the sentences shall
run concurrently and not consecutively. We say so as the
appellant has been sentenced to imprisonment for life for the
offence under section 376 of the Code, which sentence is also
imposed for the offence under section 302 of the Code.
Criminal Appeal Nos. 1473-1474 of 2017 Page 29 of 30
30. For the aforesaid reasons, we uphold the conviction of the
appellant for the offences under Sections 302, 376, 364, 366A
and 201 of the Code and the sentences awarded for the offences
under Sections 376, 364, 366A and 201 of the Code. The appeals
are, however, partly allowed by commuting the death sentence to
that of life imprisonment with the stipulation that the appellant
shall not be entitled to premature release/remission before
undergoing actual imprisonment of 30 years for the offence under
Section 302 of the Code and further the sentences awarded shall
12
run concurrently and not consecutively.
The appeals and all pending applications are disposed of.
......................................J.
(L. NAGESWARA RAO)
......................................J.
(SANJIV KHANNA)
......................................J.
(B.R. GAVAI)
NEW DELHI;
NOVEMBER 08, 2021.
12
In view of the Constitutional Bench decision in Union of India v. V. Sriharan alias Murugan and
Others, (2016) 7 SCC 1, the above direction would not affect the constitutional power of the
President or Governor under Article 72 or 161 of the Constitution of India.
Criminal Appeal Nos. 1473-1474 of 2017 Page 30 of 30