Devendra S/O.Sharanappagouda ... vs The State Of Karnataka on 2 November, 2017

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Karnataka High Court

Devendra S/O.Sharanappagouda ... vs The State Of Karnataka on 2 November, 2017

2. As the facts unfurl the details are that, a criminal case came to be registered in Cr.No.221/2011 on the basis of a complaint lodged by one Mallannagouda, stating that he is the husband of Parvati, father of three daughters and a son. He further states that his son Madivalappa aged 6 years was missing from 2.30 p.m. on 15.12.2011. The complaint was lodged at 8.30 p.m. on the same day, as his son Madivalappagouda who was attending the school at Heroor did not return on 15.12.2011 despite other students returning to their respective homes as usual. He goes to the school and enquires and comes to know that his son had already left at 2.30 p.m. The 4 complaint came to be registered in Crime No.221/2011. However, on 18.12.2011 the FIR that was registered in the said crime number " for missing" came to be transformed to one in respect of the offence punishable under Sections 364 and 302 of Indian Penal Code.

3. The information given on 18.12.2011 by the complainant that Devendra son of Sharanappa kidnapped the his son Madivalappagowda aged 6 years on 15.12.2011 that was registered "for missing" from the school in which he was studying at Heroor and was murdered by the accused by beheading the child with a sharp weapon. He refers his previous complaint/statement filed by him on 15.12.2011 wherein he lodged a missing complaint of his son. In the complaint dated 18.12.2011 it is stated that the accused kidnapped Madivalappagouda from the school at Heroor and murdered him in the land of Shahhusain 5 Hajisab Inamdar at Hireur village and FIR came to be transformed for the offence punishable under Sections 364 and 302 of IPC. He further states that the accused was pressurizing him to give his daughter Basamma in marriage to him, that proposal was ultimately refused by the complainant, and the accused stooped to the level of kidnapping and murdering Madivalappa Gouda as mark of vengeance.

4. The dead body of Madivalappagouda was found at the land of Shahhusain Hajisab in two parts as the child was beheaded. It is also stated that the accused was also warning that the complainant and his family would learn a lesson only if any one of their family member was murdered. The complainant went to school and came to know from the teachers Sharada and Shahida Pinjar that a male person took Madivalappagouda at 2.30 p.m. on 15.12.2011 was 6 addressed by the Madivalappagouda as Maama. It is that time, the complainant showed the photo of the accused in the case. The teachers on seeing the photo of the accused confirmed the complainant that the person in the said photo was the same one who took Madivalappagouda from the school on 15.12.2011. He also encloses the copy of the complaint lodged on 15.12.2011.

5. The inquest mahazar as per Ex.P.8 on the dead body of Madivalappagouda was conducted on 18.12.2011 during which the statements of the parents, Ishwarappagouda, the uncle of the child were recorded. After the said formalities, the dead body was sent for post-mortem.

6. Upon the completion of investigation, the final report came to be filed for the offence punishable 7 under Sections 364 and 302 of IPC against the accused Devendrappa S/o Sharanappa in CC No.28/2012.

7. The matter was committed to the Sessions Court. After the case was being presented by the learned Public Prosecutor, the trial Court heard regarding charge and found grounds to frame charges for the offences punishable under Setions 364 and 302 of IPC. The accused pleaded not guilty and claimed to be tried.

8. The prosecution has examined PWs.1 to 20 including the prime witnesses complainant, his brother Mallannagouda S/o Sharanagouda, Shahida Begum, Laxman Bhimappa Badiger, Dr. Satish Tiwari I.O. V.R.Yalagi and documents Ex.P.1 to P.26 including complaint, missing complaint, seizure mahazars, post- mortem report, FIR, FSL report, M.O.1 to 16 including shirt, half pant, socks, shoes, kerchief, sickle, sample 8 bloodstained soil were marked. No witnesses were examined by the defence. Ex.D.1 and D.2 are portion of the statement of PW.9 Shivanna Ningappa Basavannavar, PW.17 Devindrappa Tipper Dhannur.

9. The learned counsel for the appellant would submit that the very ground of vengeance theory by the complainant cannot be believed taking to the extent of causing death of the victim. He further submits that the accused was not that cruel nor had any criminal background to commit either kidnapping or the murder of Madivalappagouda. He would further submit that the sequence of events and documents regarding spot mahazar Ex.P.6 , place of offence Ex.P.7, recovery of clothes Ex.P.11 are imaginary and documents that came out of connivance between the complainant and the police. It is also his contention that the version of the witnesses PW.6 Abdul Gani, Nabisab Mukhiya, 9 PW.8 Shahida Begum, Gudusab Pinjar bear strong layer of falsehood and their version speaks lot of exaggeration and not worth reliable. Further the learned trial judge has not properly evaluated the oral and documentary evidence and failed to conclude on the innocence of the accused. Learned counsel for the appellant would further submit that the judgment wherein the accused was convicted is not justifiable and based on valid reasons. The accused being an innocent is not liable for the punishment, rather thinking of death sentence to him by considering the case as the 'rarest of the rare' one. In this connection, he placed reliance on the following decisions:

(1) 1973 SCC (Cri) 169 (Jagmohan Singh vs. The State of U.P.) (2) 1979 SCC (Cri) 749 (Rajendra Prasad vs. State of Uttar Pradesh) (3) 1980 SCC (Cri) 580 (Bachan Singh vs. State of Punjab) (4) 1983 SCC (Cri) 681 (Machhi Singh and others vs. State of Punjab) 10 (5) (2008) 2 SCC (Cri) 322 (Swamy Shraddananda Alias Murali Manohar Mishra vs. State of Karnataka) (6) (2013) 2 SCC 452 (Sangeet and Another vs. State of Haryana) (7) 2002 SCC (Cri) 153 (Thanedar Singh vs. State of M.P.)

10. Learned Additional S.P.P. supporting the judgment and order of conviction passed by the learned Sessions Judge, seeks to confirm the judgment convicting and death sentence imposed on the accused and to dismiss the appeal preferred by the appellant/accused. Learned Addl. S.P.P. on the sentence of death penalty being imposed to the accused would submit that the barbaric way of murder of Madivalappagouda by beheading the child prior to which mouth was stuffed with cloth, create a fearsome situation and frightening atmosphere in the mind of the entire society, more particularly, women and children. Thus, prays to confirm the death sentence by rejecting the appeal.

11. The question before us is that does the accused Devendra kidnapped Madivalappagouda son of the complainant on 15.12.2011 and murdered the said child, as the dead body was discovered on 18.12.2011. In case the offence under Section 302 of IPC is established, does it fall under rarest of rare categories to attract death sentence.

12. As the offence leveled against the accused is one punishable under Section 302 of IPC, it is incumbent on the part of the prosecution to establish that the death of Madivalappagouda aged 6 years that was traced on 18.12.2011 subsequent to complaint dated 15.12.2011 was homicide and not a natural. In this connection, the complaint dated 15.12.2011 and 18.12.2011, the recovery of the dead body on 18.12.2011 at a distant place with head ripped apart from the body getting decomposed wherein maggots 12 were crawling over the head invariably establish that the death was not a natural one, but homicide.

13. Complainant as PW.1 on oath reiterates the contents of the complaint dated 15.12.2011 and 18.12.2011 to the effect, missing of the child and later finding that the he was being kidnapped by the accused who murdered him between 15.12.2011 and 18.12.2011. He further states that the clue was provided by the teacher regarding the person who took the child on 15.12.2011 was the accused, when on seeing photograph the teacher confirmed that it was the accused person. The complainant also states that the accused was waiting to take vengeance against him, as the complainant and his family members had refused to give in marriage Basamma, the sister of Madivalappagouda, to accused.

14. In the said connection, the evidence of Gurupadappa PW.7 reveals that the refusal of the complainant to give his daughter in marriage to the accused and the latter's disappointment.

15. The evidence of the teacher PW.9 is to the effect that she identified the person who took the child from the school at Heroor at 2.30 p.m. on 18.12.2011.

16. During inquest mahazar Ex.P.8 Parvati mother of the victim, uncle Eshwargouda, Abdul Rahiman and others were present and their statements also were recorded. Spot mahazar Ex.P.6 dated 19.12.2011 was conducted at the school premises from where victim Madivalappagouda was kidnapped. Ex.P.5 is the mahazar for having seized the clothes found on the dead body. The articles that were seized after the completion of post-mortem are shirt, half pant, underwear, saffron colour underwear, kerchief and 14 black shoes that were produced by the CPC 496. Ex.P.7 is the mahazar dated 19.12.2011 for seizing blood stained soil and ordinary soil from the place of offence.

17. Blood stained Clothes of the accused were seized on 19.12.2011 as per Ex.P.11. Seizure of the weapon from the accused Ex.P.4 is said to have been conducted for having recovered from the accused after discovering the same at the instance of the accused. From the spot cloth like kerchief said to have been used for inserting in the mouth of the victim to block respiration was also seized in addition beer bottle, opener and chilly powder. The sickle said to have been used by the accused for committing the offence was also seized. Insofar as the incident of murder is concerned, admittedly there are no eyewitnesses.

18. Insofar as the dead body of victim as described in Ex.P.15 post-mortem report dated 15 18.12.2011 conducted between 5.40 p.m. to 6.40 p.m. and the doctor who conducted the postmortem states that the dead body was decomposed, distended and disfigured and discoloured emitting foul odder and maggots were found crawling over the head. The doctor PW.15 Dr. Satish Tiwari who conducted the post- mortem has also concluded that the death was due to asphyxia because of the deep neck injuries. It is also to be stated that the said injury was the one to the maximum worst possible extent one could get inflicted as it is in the form of severance of head.

19. The teachers which included PW-9 told him that it was the person in the photo who took the child along with him. Moreover, the child Madivalappagouda responded as "mama" to that person who is the accused. Under such circumstances, one may take that the child and the accused were familiar to each other. 16

20. In substance he neither helps the prosecution nor the accused.

21. Insofar as PW.10 Inamdar is a circumstantial witness who states that he is the neighbouring land owner he came to know about the incident.

22. Prabhu PW.12 in his evidence dated 16.4.2015 states having seen the accused running towards Nala on the date of incident holding the sickle.

23. Sajjad Khadri PW.13 in his evidence dated 16.4.2015 states that he has seen the child going along with the accused towards Fatepur road and later for having seen its dead body on 18.12.2011.

24. Incidentally PW.13 goes away from his version during the cross-examination that was 17 conducted in the second session regarding hearing sound and seeing the incident in a way beneficial to the accused. He was cross-examined by the learned Public Prosecutor as well.

25. Dr.Satish PW.15 who in his evidence dated... states about external injuries and the body being divided into two parts with neck injury to the maximum extent because of beheading. He also has identified 9 injuries out of which six were stab injuries.

26. Evidence of PW.16 is for having carried the FIR. PW.17 examined on 18.6.2016 states that on 3 to 3 ½ years back having seen the accused with bloodstained clothe wandering here and there in shock.

27. Sangangouda PW.18 states for having seen the accused in M.Os.11 and 12 blood stained and the accused in a state of shock.

28. PW.19 Police Officer states about the investigation, recording statement, receiving FSL report and the related.

29. The father of the victim noticing non-arrival of his son Madivalappagouda to home from the school on 15.12.2011 lodged complaint-Ex.P.1 to the police and it was registered in Cr.No.221/2011 and the said version is corroborated by the evidence of the teacher PW.8.

30. From the evidence of PWs.11 and 12 it is seen that the accused with a bag in his hand was seen walking along with Madivalappagouda on 15.12.2011 at the outskirts towards Fatepur road.

31. Further both accused and Madivalappagouda were seen in the land of Abbasali Kambar by PWs.11 and 12. However, their exaggerated 19 version goes beyond believable portion regarding the description of the incident as they are not eyewitnesses.

32. The accused was seen rushing towards nala in blood stained clothes is confirmed by the evidence of PW.12.

33. Further the accused alone was seen in bloodstained clothes in a state of shock at the Bus Stand by PW.18.

34. The accused and the complainant have their own grouse and vengeance for exchanging against each other insofar as complainant, he asserts that the accused developed vengeance on him as the former did not give his daughter Basamma in marriage to the accused. The accused claims that the complainant was owing Rs.10,00,000/- to him and he wanted to escape from the liability of repayment and was waiting for an 20 opportunity and has used the incident by filing the complaint against the accused.

35. No doubt, a person who commits an offence, more particularly, the heinous one may keep the cause or the purpose in dark, rather, make the people around and the officials who are conducting the investigation of that case. More often, that is not when the offender apprehends backfiring if the object is known to others. Thus, the others may go on by presuming a wrong object. Thus, whether the main motive or the material motive for committing the offence may not be known to the other or not, the motive cannot get extinguished. Further, the commission of offence may itself can be the object or may be even to hide the real object.

36. The concept of motive for committing a crime may also depend upon the nature and wisdom of a person who commits offence under particular 21 circumstances and some go on offensive on the innocent. Thus, just because the motive is not established in fool proof, it cannot be concluded that offence was not committed. Further behind every offence there will be an offender and the court takes the cognizance of the offence and not the offender. There are cases where motive or design to commit an offence is by a sadist, is nothing but his mindset that drives into commit offence.

37. The child when alive disappeared from the school. Insofar as the memory of the witnesses are concerned, due to limited development and limited population in rural side, people therein have a tendency to have the familiarity of each other and also identify the land or garden with particular name and even persons to refer with their status or avocation when they do not know or remember the names.

38. Insofar as the scene of offence on 18.12.2011 has been so ghastly that it was worst form of punishment to anybody to see his offspring of six years, the only male issue lying dead after being beheaded, is a nightmare for remaining portion of his life.

39. Insofar as the witness in connection with the recovery of weapon or soil turning hostile does not leave any impact of affecting the case as it is corroborated by the documentary evidence issued by the expert in respect of soil, blood and the weapon used for offence and the Investigating Officer.

40. There need not be a second occasion to conclude that the child Madivalappagouda was kidnapped by the accused Devendra from the school on 15.12.2011 and discovered dead on 18.12.2011 and the 23 death was homicidal and ghastly and the mode of causing death was so barbaric it is even horrible to imagine that a child of six year was shown the highest form of fear and terror by inserting clothes into its mouth to make it help and speechless before he was done to death.

41. The sole defence of the accused is indebtedness of the complainant to the extent of Rs.10,00,000/- to the accused. This version is totally unreliable and ignored in the context of circumstances. Thus, not relied upon. The sighting of accused with the son of the complainant is identified by the reliable and natural witnesses PWs.6, 7, 8, 11, 13 and 18 and has all the efficacy of legal force.

42. The accused kidnapped the child on 15.12.2011 as stated above and took it to unknown place and murdered him by beheading in a most 24 fearsome way and creating dangerous and unimaginable fear. Fear and threat to the core was employed by the accused on the child just prior to getting murdered. The version of the prosecution is corroborated by the complaint-Ex.P.1, inquest mahazar-Ex.P.8, spot mahazar-Ex.6, evidence of PW.1, school teacher PW.-8 recovery of dead body in two parts further strengthens the prosecution case.

43. The child was put to fear and cloth was inserted in its mouth to make it speech and helpless, even otherwise, the child was in a no match in terms of power of the offender possessed weapon as well.

44. The child was in the school uniform when he was murdered after getting kidnapped.

45. Kidnapping a minor child happens for various aspects example, abusing, ransom, trafficking, 25 beggar which are punishable under various sections of IPC.

46. In the present case, the offences charged against the accused are punishable under Section 364 and 302 of IPC. Further the kidnapping may not be for any of said purposes or even it may be for the refusal of marriage with Basamma aspect as stated by the complainant.

47. The accused after the brutal act of murdering the child has gone clueless and terribly upset apprehending of being caught and entered shock and panic, thereby appears to have decided that the only way out is to murder the child and committed the gruesome act of murdering Madivalappagouda.

48. The prosecution has proved the commission of the offence punishable under Section 364 and 302 of 26 IPC beyond reasonable doubt to the effect that the accused kidnapped Madivalappagouda aged 6 years on 15.12.2011 and murdered the said boy somewhere at a particular time between the evening of 15.12.2011.

49. We do not find any infirmity, irregularity or breach of legal barriers in the judgment of the trial Court holding the accused guilty of kidnapping and murdering Madivalappagouda.

50. The learned trial judge has sentenced the accused with death penalty. As the offence under Section 300 defines the murder and section 302 provides for punishment, it is necessary to mention both the sections.

"300. Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of cause death, or 27 Secondly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -

Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -

Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

302. Punishment for murder - Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine."

51. The offence punishable under Section 302 IPC relates to murder which is punishable with imprisonment for life and fine or death sentence. In the 28 present case the learned trial Judge has ordered death sentence to the accused. Under Section 366 of the Code of Criminal Procedure, whenever, the Sessions Judge that the accused to be sentenced to death, has to send the finding to the High Court by way of reference.

52. Thus, we are under duty to peruse and decide whether the case in the circumstances and the offence committed by the accused falls under the category of rarest of the rare cases to attract death sentence.

53. At the same time the accused has preferred appeal against the judgment in SC No.96/2012. Thus, both the matters related to same case and judgment, both of them are taken up together.

54. Before proceeding to discuss on the order of sentence, we find it necessary to mention Section 303 of IPC which runs as under;

"303. Punishment for murder by life- convict - Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.

55. Thus, whenever a convict undergoing life imprisonment as punishment in a case where the punishment prescribed was life imprisonment or death sentence, the learned Judge selects to restrict for life imprisonment in case and such convict further commits the offence which is punishable with life imprisonment or death sentence, there was no discretion available to the Court on finding the guilty of such offence, to impose life imprisonment. On the other hand, such convict of the first case was liable to be punished with 30 death sentence in case of his guilt of committing the said kind of offence in the subsequent case.

56. However, the said section was declared unconstitutional by the Apex court in the case of Mithu vs. State of Punjab reported in AIR 1983 473.

57. The society has progressed time to time and the right to life has been considered as the one with dignity and the theories of punishment in majority number of nations across the world believing combination of reformative and preventive rather than a cluster of countries which believe in deterrent theory of punishment.

58. The society with its dynamic nature of getting reformed from the previous phase to the next witnessed better maturity in consideration of the punishment for the offences.

59. In 16th century AD there were more than 300 felonies for which the punishment was death sentence. In 18th century AD the Code of King Hammurabi of Babilonia identified 25 felonies that were punished with death sentence.

60. The few of the cases which earmarks the concept of rarest of rare case are Bachansingh Vs. State of Punjab, Billa and Ranga in a case wherein rape and murder of victim was committed and her younger brother who in his tender age showed bravery to stand against the accused was also murdered. More particularly both of the victims were the children of Officer from Defence guarding the border of motherland.

61. In the judgment rendered by His Lordship Justice Sarkaria and His Lordship Chandrachud and Justice A.C.Gupta and N.L.Untwualia wherein His 32 Lordship Sarkaria rendered the judgment which was the majority view holding the constitutional validity of the death sentence with reference to Art. 19 of the Constitution.

62. No doubt that the accused committed a gruesome murder sending harsh message of fear with devastating consequences, the punishment has to be assessed before ordering a person to be hanged until death.

63. Further the preparation in committing offence, terror outfit, criminals who are psychopaths are also the aspects to be seriously considered in the case on hand. The offence, mode of its commission, the object and it fearsome impact on the society are to be considered.

64. No doubt, the manner of murder in this case is wretched, ghastly besides alarming as murder by beheading a child who was helpless from beginning of the offence of kidnapping the till the last moment of life. It did not anticipate such a terroristic end to its life in the hands of a criminal who was known to the family of the child. However, the offence and the manner has to be assessed meticulously.

65. The punishment of death is not prescribed as it was done in case of Shah of Iran and Zulfikar Ali Bhutto who was a Barrister by himself in Pakistan. Even death sentence is certain Islamic country the punishment is carried out by pelting stone till death of the condemned. It cannot be forgotten for a while principles of natural justice and human rights are not only recognized, but also respected in India. 34

66. The notable examples of imposing for the recent time are the cases of Afzal Guru in the matter of attempting to blow the Parliament of India, and the matter of Kasab, a Pakistan national where the acts of the said criminals themselves proved that they require no less than death sentence for their dreaded acts.

67. Thus, in the circumstance the real and the worst punishment is being and will be suffered by the unfortunate parents of the departed soul whose loneliness is by many time worse than solitary confinement.

68. It is they who suffer the shock of the death of their lovely sole male issue and their grief touches the peak of a rock in seeing their beloved a school going child murdered by dastardly act of the accused.

69. However, the offence committed by the accused for the offence punishable under Section 302 35 IPC, in our considered finding does not fall under the category of rarest of the rare cases to attract death sentence.

70. The Hon'ble Apex Court in the case of Machhi Singh vs. State of Punjab reported in 1983 SCC (Cri.) 681 has held as under:

"38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. The following propositions emerge from Bachan Singh's case:

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."

71. In the case of Jagmohan Singh vs. The State of U.P., reported in 1973 SCC (Cri.) 169 the Hon'ble Apex Court has held as under:

"Constitution of India - Article 19 (1) - Death sentence if violative of Article 19 (1) - Validity of Section 302 IPC - Relevance of decision of U.S. Supreme Court based on Eighth Amendment and due process of law - Freedom to live if included in Article 19(1)."

72. We, however, concur with the learned Sessions Judge regarding conviction for the offence punishable under Section 302 IPC and restrict the punishment to rigorous imprisonment for life and a fine of Rs.2,50,000/- in default to undergo simple imprisonment for a period of two years.

73. Thus, we are not inclined to grant confirmation for death sentence to the accused under Section 366 of the Code of Criminal Procedure and we hereby reject the reference made by the learned District & Sessions Judge, Vijayapur dated 06.02.2016. At the same time, we confirm the judgment in the said case 38 whereby the accused was convicted for the offence punishable under Section 302 IPC by the learned Sessions Judge, Vijayapura. But do no consider the offence as the one falling under rarest of the rare cases and thus restrict the punishment to life imprisonment.

74. Hence, we proceed to pass the following:

ORDER The appeal preferred under Section 374(2) of Cr.P.C. by the appellant-accused against the judgment in S.C.No.96/2012 dated 06.02.2016 is hereby partly allowed. However, the order of conviction is confirmed and the accused is sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,50,000/-

in default to undergo simple imprisonment for a period of two years. The appeal against the order of convicting and sentencing the accused for the offence punishable under Section 364 IPC is hereby dismissed.

The reference made by the learned I Additional Sessions Judge, Vijaypur seeking confirmation of the death sentence, is hereby rejected.

The learned Sessions Judge is hereby directed to secure the accused from the concerned Jail where he is lodged and issue necessary warrant of conviction.

Sd/-

JUDGE Sd/-

JUDGE NSP

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