Karnataka High Court
The Registrar General vs Mallika @ Lakshmi @ Shivamogga Kempamma on 2 August, 2012
Author: D V Shylendra Kumar
Bench: D V Shylendra Kumar
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF AUGUST, 2012
PRESENT
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR JUSTICE B V PINTO
Criminal Referred Case No.5 of 2009 DB(C)
C/w
Criminal Appeal No.434 of 2009 DB(C)
IN CRL.RC NO.5 OF 2009
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BANGALORE ... PETITIONER
[By Sri H S Chandramouli, SPP
for Advocate General]
AND:
MALLIKA @ LAKSHMI
@ SHIVAMOGGA KEMPAMMA
W/O HANUMAPPA
AGED ABOUT 45 YEARS
NO.434, BADEKATTE
LAKSHMIPURA VILLAGE
KAGGALIPURA HOBLI
KANAKAPURA ROAD
BANGALORE SOUTH ... RESPONDENT
2
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366 OF CODE OF CRIMINAL
PROCEDURE FOR CONFIRMATION OF DEATH SENTENCE AWARDED
TO ACCUSED MALLIKA @ LAKSHMI @ SHIVAMOGGA KEMPAMMA
W/O HANUMAPPA, 45 YEARS, NO.434, BADEKATTE, LAKSHMIPURA
VILLAGE, KAGGALIPURA HOBLI, KANAKAPURA ROAD, BANGALORE
SOUTH BY THE ADDL. SESSIONS JUDGE, PRESIDING OFFICER, FTC-
I, TUMKUR BY JUDGMENT OF CONVICTION DATED 24.03.2009 &
28.03.2009 IN S.C. NO.164/2008 AND ETC.,
IN CRL.A NO. 434 OF 2009
BETWEEN:
MALLIKA @ LAKSHMI
@ SHIVAMOGGA KEMPAMMA
KOM HANUMAPPA
AGED ABOUT 45 YEARS
BADE KATTE LAKSHMIPURA VILLAGE
KAGGALIPURA ROAD,
BANGALORE ... APPELLANT
[By M/s G M Ananda & Asha B L, Advs.]
AND:
STATE BY AMRATTUR POLICE
TUMKUR DISTRICT ... RESPONDENT
[By H S Chandramouli, SPP]
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF
CODE OF CRIMINAL PROCEDURE BY THE ADVOCATE FOR THE
APPELLANT PRAYING TO SET ASIDE THE ORDER OF CONVICTION
AND SENTENCE DATED 24.3.2009 PASSED BY THE I ADDL.
SESSIONS JUDGE (F.T.C), TUMKUR, IN S.C.NO. 164/2008 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC AND THE
APPELLANT/ACCUSED SENTENCED TO DEATH PENALTY & SHE
SHALL BE HANGED BY NECK TILL DEATH AND ETC.,
THESE CRL.RC AND CRL.APPEAL COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
In CRL.A No. 434 OF 2009 (Per B V Pinto, J.,):
This reference under section 366 of Criminal Procedure Code [Cr.PC] is made by the Presiding Officer, Fast Track Court - I, Tumkur, in SC No.164/2008 where under he has convicted the accused for offence under section 302 of IPC and imposed death sentence on her by Judgment dated 24.3.2009 and Order dated 28.3.2009.
2. The accused also has challenged the order of conviction and sentence in Criminal Appeal No.434/2009. Since both the matters are arising out of the same Judgment, both are heard together. The parties are referred according to their ranking before the trial court.
3. It is the case of the prosecution that the accused was befriending women who were visiting the Temples and thereafter enticing women to come along with her and after taking them to a lonely place she used to administer poison in the nature of cyanide through certain eatable articles and 4 thereafter she used to rob the jewels found on the person of such women.
4. It is the further case of the prosecution that on 13.12.2007 the accused had gone to the house of the deceased Muniyamma who was the resident of Chikkabommasandra near Yelahanka, Bangalore and had taken her to Hattilakkamma Temple at Yediyur and on 15.12.2007 she has visited Siddalingeshwaraswamy Temple at Yediyur within the jurisdiction of Amruthur Police Station and after securing room No.28 in Parvathi Block of the said Temple, the accused induced deceased Muniyamma to pray by closing her eyes and at about 12.30 in the noon, the accused forcibly administered cyanide into the mouth of the deceased Muniyamma and pressed her mouth while said Muniyamma was closing her eyes and was praying and after the deceased Muniyamma breathed her last, the accused is alleged to have removed the gold chain and gold ole from the body of the deceased and after locking the room from outside 5 she escaped from the scene thereby she is alleged to have committed offence under section 302 of IPC.
5. The prosecution in order to prove the case against the accused has examined in all 39 witnesses and got marked Exhibits.P1 to P27 and also produced MO Nos. 1 to 15.
6. The defence of the accused was one of total denial. However, by the Judgment impugned in this reference, the learned Sessions Judge was pleased to hold that the accused is guilty of the offence under section 302 of IPC and after considering the gravity of the offence, the learned Sessions Judge was pleased to observe that it is the rarest of rare case which deserves extreme penalty of death sentence and consequently the learned Sessions Judge has imposed death sentence on the accused. The learned Sessions Judge referred this matter for confirmation of death sentence on the accused while the accused has challenged the order of conviction in her appeal.
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7. Heard Sri. H S Chandramouli, learned State Public Prosecutor insofar as confirmation of the death sentence is concerned and Sri. Ananda, learned counsel for the appellant insofar as appeal against the conviction is concerned.
8. Since the confirmation of death sentence would be consequent upon the confirmation of order of conviction, we are dealing with the appeal against the conviction presently.
9. Sri. Ananda, learned counsel for the appellant submits that in this case, nobody has identified the accused as the person who has come to the scene of occurrence on the date of the alleged offence and therefore he submits that identity of the accused is not established beyond reasonable doubt. He further submits that signature of the accused in the ledger is not compared with the admitted signature of the accused in the ledger in the guesthouse of the Temple and therefore the link between the act and the person is also broken and it cannot be conclusively held that it is the 7 accused who had approached the Temple authorities for providing a room along with the deceased. He further submits that son of the deceased had stated that the deceased had gone with one Kempamma on the last occasion, when she was found alive whereas the name of the accused is Lakshmi or Mallika. It is further submitted by him that ledger - Ex.P11 does not contain the signature of the accused to hold that it is the accused who had pledged the ole [MO. No.6] with PW.12 - pawn broker. He further submits that the complaint is filed by Anjanappa - PW.1, son of the deceased on 2.1.2008 and by that time accused was already in Police custody in Kalasipalyam Police Station and therefore a false case has been built up after the arrest of the accused. He therefore submits that in the absence of any eye witnesses, the aforesaid circumstance would not suffice to hold the accused guilty and therefore he submits that the accused is entitled for an order of acquittal. 8
10. It is also further submitted by him that the Police Officials who had apprehended the accused at Kalasipalyam Bus Stand have not stated in uniform terms and that there is discrepancy in the evidence of the officials and independent witnesses PW.27 to PW.34 insofar as the articles found in possession of the accused at the time she was first apprehended at Kalasipalyam Bus Stand. It is his submission that the Police have created these documents, more particularly, seizure of 15 articles from the possession of the accused and other documents in order to suit the purpose of the prosecution. Hence, he submits that the order of conviction passed against the appellant is liable to be set aside and prays accordingly.
11. Learned State Public Prosecutor, on the other hand, submits that on 30.12.2007 when the accused was apprehended by the Kalasipalyam Police, certain articles including key chain of room No.28 of Parvathi Block in Siddeshwaraswamy Temple at Yediyur was found in 9 possession of the accused. The said key chain is a strong link to connect the accused with the crime coupled with other documents, more particularly, receipt for having pledged gold ornaments with PW.12. He submits that evidence of PW.12 that it is the accused who had pledged certain articles with him is a very strong and clinching evidence insofar as connection of the articles belonging to the deceased with the accused is concerned. It is submitted by him though there is minor discrepancy regarding the number mentioned in the receipt - Ex.P10, it is the accused who had led the Police to PW.12 and the fact that PW.12 had admitted that the accused had pledged certain articles with him indicates that there is connection between recovery of gold materials at the instance of the accused and having regard to the fact that PW.1 has identified the gold jewels as belonging to his mother, the circumstance of recovery has been proved by the prosecution.
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12. It is further submitted by him that both PW.7 and PW.8 who are employees of Siddeshwara Temple at Yediyur, have not only categorically spoken regarding the identity of the accused as being the same person who had come to the Temple on the date of the offence, but it is also noted in the evidence of PW.7 and PW.8 that it is the accused who had identified the witnesses PWs. 7 & 8 as person who has provided the key of the room and also as the person who had accosted her and the deceased to room No.28 on the date of the incident. It is submitted by him that having regard to the fact that PW.2 has identified MO No.7 - key chain as belonging to the Temple and that there is no serious challenge regarding this aspect of the case by the defence, the prosecution has amply proved the allegations of murder against the accused and that the learned Sessions Judge has rightly convicted the accused and sentenced her. Insofar as argument regarding sentence is concerned, the same will be examined in the later part of this Judgment. 11
13. The prosecution in this case commenced with the filing of the complaint of PW.1 - Anjanappa, who is son of the deceased, on 2.1.2008 before Amruthur Police Station. It is stated in the complaint that his mother Muniyamma was a retired personnel having worked in the Agricultural University and that she was a very devoted person and would visit any new Temple constructed anywhere around. It is stated by him that on 15.12.2007, his mother had gone saying that she will go to some Temple and had not come back for about three to four days. Thereafter, he has given a complaint to Amruthur Police Station and after some time, the Police came to his house and showed photographs of his mother and informed him that his mother has been murdered. He has identified his mother by means of photographs shown by the Police. He has stated that when going from the house, his mother was wearing gold mangalya chain, one ring and one ole in the ears. When he saw the photographs of his mother's dead body, the gold ornaments were missing. He was informed by the Police 12 that some woman had accompanied his mother and after forcing her to consume cyanide, his mother has been done to death in the Temple premises. He has identified the clothes worn by his mother and also gold ornaments as the same which was worn by his mother at the time of leaving the house on 15.12.2007. PW.1 has been cross examined to suggest that his mother was not wearing any gold ornaments and that he is not aware of the ornaments worn by his mother. But, the suggestion has been denied by PW.1.
14. PW.2 - Madhava is the Secretary in Siddeshwaraswamy Temple at Yediyur. On 18.12.2007, he came to know that one of the occupants of room No.28 in the Temple has been done to death by the other accompaniment and that dead body was emanating foul smell. He has stated that the room was booked by a woman by name Lakshmi on 15.12.2007 and for the next two days, the room was locked; that they had given Rs.200/- as 13 advance rent and daily rent was Rs.80/-. Since there was foul smell emanating from inside the room, they informed the Police and thereafter opened the lock, found the dead body of the woman. He has identified Exhibit.P3 being the receipt issued by the Temple officials in respect of room No.28. He has also identified signature on the ledger book for the said purpose as per Ex.P4. It is in the evidence of PW.2 that subsequently accused was brought to the Temple and he has identified the signature found in Exhibit.P5 which is a mahazar prepared by the Police at the time when the accused was brought near the Temple.
15. PW.3 - Renukaprasad was working as an Engineer in Yediyur. He was also present when the door was opened on 18.12.2007 to find out that the dead body of elderly woman was lying in room No.28 and that he has also signed Ex.P5 which is a mahazar drawn by the Police.
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16. PW.4 - Krishnegowda has stated that he is a signatory to Exhibit.P7 which is the inquest proceedings drawn near room No.28 of Parvathi Block inside the Temple.
17. PW.5 - Chandru is another signatory to Exhibit.P7. PW.6 - Palaksha is signatory to mahazar for having cremated the dead body in the public cemetery near the Temple. He has identified his signature in Exhibit.P8 which is a document prepared by the Police. It is in his evidence that the Police had brought the accused to the Temple and at that time the accused had admitted the guilt in their presence and he has also identified the receipt - Ex.P3 issued by the Temple.
18. PW.7 - Y.R. Kumar is Second Division Clerk in Yediyur Temple. He has stated that on 15.12.2007, the accused had come to the Temple to take a room along with another woman and accused had stated that they had come for puja and that they require one room. The accused had given her name as Lakshmi of Pandavapura and PW.7 allotted them 15 room No.28 and also issued a receipt for having taken advance amount. When questioned the accused informed that she and the other accompaniment are daughter and mother respectively and that they would stay there for only 24 hours. The other person was elderly woman aged about 65 to 70 years. He has also spoken regarding the death of the deceased and the opening of the room after two days. It is stated by him that when the Police brought the accused to the Temple, the accused herself identified him saying that he is the person who had allotted the room to her. He has signed Ex.P9 - Mahazar drawn at the Temple. In the cross examination, it is suggested that he has not seen the accused. However, he replied that he has seen the accused within the distance of two feet at the time when he asked for the address of the accused while giving the room. He has further stated that only when the advance amount is paid, they hand over the keys of the room and thereafter the inmates were made to sign the books and thereafter they are sent along with the room boy. It is suggested that PW.7 is 16 not working in the Temple at all which suggestion has been denied by PW.7.
19. PW.8 - Venkatesh is 'D' class employee of the Temple. He has stated that on the date of the incident, the accused had come along with another woman at about 11.30 am. She brought receipt from the office and thereafter he made the accused to sign the ledger book. The accused had written as Lakshmi in the ledger book and her native as Pandavapura. The receipt contained room No.28 and hence after signature on the ledger book, he took the accused and the elderly lady to room No.28. He has also stated that two days thereafter the room was locked and thereafter it was broken open in the presence of the Police to find out the dead body of the deceased woman. It is in his evidence that when the Police brought the accused to the Temple, the accused herself identified him as a person who had accompanied her till room No.28. It is also suggested to PW.8 that he is not in the employment of the Temple and 17 that many people come and go to the Temple and therefore he cannot identify as to which person came on which day and to which room. However, he has stated that he is a long standing employee of the said Temple.
20. PW.9 - Ramachandraiah is the son of the deceased. He has also stated that his mother is a devotee of Temples and that after her retirement, she was having hobby of visiting Temples. He has identified MO Nos. 1 to 3, 5, 6 and 11 as belonging to his mother which includes the clothes worn by the deceased and the ole and the spectacles belonging to his mother.
21. PW.10 - Anjanamma is daughter of the deceased. She has also stated that on 15.12.2007, her mother had gone along with one lady who called herself as Kempamma and this fact was informed to her by her mother. She has identified the dead body of her mother through photographs shown to her. In the cross examination also it is elicited 18 that the accused had taken her mother on the date of the incident.
22. PW.11 - Sunil is grandson of the deceased. He has stated that the deceased was wearing mangalya chain, ole and nose bud wherever she used to go out and when he went to the Temple to find out whether his grandmother had been subjected to murder, he has stated that the ornaments were not found in the photographs shown to him, of the dead body of his grandmother.
23. PW.12 - Bheram Chowdhary is a pawn broker who has stated before the court that he is running a shop in Kengeri Satellite Town in the name of Mangalram Bankers. He has identified the accused before the court. He has stated that he had licence for pawn broking and he has identified the receipt shown to him in the court as belonging to his shop. He has stated that on 15.12.2007, the accused had come to his shop and pledged one pair of ole and took Rs.3,000/- from him. The said ole was weighing six grams. He has 19 noted the fact of this transaction in the pledger book and has obtained signature from the accused. He has identified Exhibits.P10 and P11 - copy of the receipt and copy of the pledger book in respect of the said transaction. He has also identified MO No.6 - ole before the court. The Police had prepared a mahazar as per Ex.P12 and he has signed it. In the cross-examination, it is suggested that he has not entered the pledger book. He has replied that there are two workers in his shop, and that after verifying writings of his workers, he would sign the pledger book. It is suggested that the accused had never come to his shop nor she has given any jewellery to him, which suggestions have been denied by PW12.
24. PW.13 - Narayana Gowda has turned hostile to the case of the prosecution. He was supposed to state regarding Ex.P12 - seizure mahazar. PW.14 - Gurusiddappa is Junior Engineer who has drawn the sketch of the scene of 20 occurrence as per Ex.P13. He has also prepared a full sketch of Parvathi Block as per Ex.P14.
25. PW.15 - S. Basavarajappa is working in the Taluk Office at Kunigal who has given the RTC of Sy. No.100 of Yediyur Village. PW.16 - Dr. Deepali has conducted the post mortem examination on the dead body of the deceased on 18.12.2007 and since there was no other external injury on the deceased, she has removed the viscera and other parts from the dead body of the deceased and sent them for chemical examination. After receipt of the report, she has given opinion that death of the deceased is caused by consumption of cyanide as a result of effect on the lungs. Ex.P15 is the post mortem report issued by PW.16.
26. PW.17 - Y V Narayana is the signatory to Ex.P6 who is watchman of the Temple. He has stated that after mahazar and post mortem report, the dead body of the deceased had been buried in the open premises outside the Temple. PW.18 21
- Gowdaiah has turned hostile to the case of the prosecution.
27. PW.19 - Kumar has stated that he has seen the accused in Kempamma Temple in Chikka Koratagere Village which belongs to their family. The accused was coming once in fifteen days to the said Temple and while so coming she was getting one or the other women along with her. At one time, one old lady had come along with the accused and said lady was singing devotional songs and later he came to know that the elderly lady has been murdered.
28. PW.20 - Srinivasaiah has stated that on 18.1.2008 the Circle Inspector of Police brought the accused to the Temple and he was present and he has identified the accused as the same person to whom he had handed over the keys of the room on the date of the incident and has also signed Ex.P8 - Mahazar drawn by the Police.
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29. PW.21 - Renuka is Second Division Assistant in the Temple who has stated that the accused had come and asked for the ticket for the room, she has received Rs.200/- as advance money and after typing the receipt in the computer, she has handed over the room keys. Ex.P9 is the mahazar drawn while the accused was brought by the Police and Ex.P3 is the original receipt typed by her in the computer. In the cross examination, it is brought out that she has not personally handed over the keys, but she has seen the accused while the Police brought her to the Temple.
30. PW.22 - Krishnappa is the relative of the deceased Muniyamma. PW.23 - Ramesh is a resident of Yediyur and he has stated that he had seen the accused in the television and came to know that the accused had murdered the deceased. PW.24 - Rajanna has turned hostile to the case of the prosecution.
31. PW.26 - Lakkanna has stated that he has signed Ex.P8
- Mahazar which was drawn by the Police at room No.28 in 23 the Temple. He has stated that he had seen the accused on that day and that the accused had stated before the Police that she has committed murder for the sake of jewellery.
32. PW.27 - Gopalakrishna who is working as Head Constable at Kalasipalyam Police Station on 30.12.2007 has stated that he had gone to the bus stop at Kalasipalyam on that day along with the lady constable and the accused was found attempting to sell two mobile phones which she had in her hand and that the accused was secured to the Police Station. Exhibit.P21 - Mahazar was drawn and the Police have seized MO Nos. 1 to 15 from the person of the accused on that day.
33. PW.28 - Rudramurthy was the Assistant Sub Inspector of Police in Kalasipalyam Police Station during December 2007. He has also spoken regarding apprehension of the accused from Kalasipalyam Bus Stand on 30.12.2007 at about 1.30 pm. 24
34. PW.29 - Manoj is Sub-Inspector of Police at Kalasipalyam Police Station who has also stated that on receipt of certain information from the informants they had been to the bus stop where the accused was found to be offering to sell mobile phones. Since many people gathered there the accused was apprehended and taken to Kalasipalyam Police Station and thereafter statement of the accused was recorded by the Inspector of Police.
35. PW.30 - Ganganna who is a Head Constable has also stated that the accused was apprehended on 30.12.2007 in the Kalasipalyam Bus Stand while she was attempting to sell mobile phones.
36. The defence has suggested that all these witnesses are deposing falsely and the accused was not apprehended in the bus stand as alleged.
37. PW.31 - V G Naik who is the Deputy Director of Forensic Science Laboratory, Bangalore has stated that 25 parts of the body sent by Dr.Deepali - PW.16 were subjected to examination for finding whether there is any chemical substance in the parts of the body of the deceased and after examination, it was found that the parts removed from the dead body contained traces of cyanide which is poisonous chemical. Accordingly, he has issued Ex.P16 - certificate stating that the parts of the body of the deceased were found to be containing cyanide.
38. PW.32 - Basavaraj is a resident of Kalasipalyam. He has stated that on the date of apprehension of the accused, himself and one Ranganath were present in the bus stand and the Police had conducted mahazar and seized one vanity bag, one cross, one receipt of the Temple, one Temple key and one visiting card, two mobile phones and some cash from the person of the accused and have drawn mahazar as per Ex.P21. He has also signed Ex.P21 and has identified his signature at Ex.P21[a]. In the cross examination, it is suggested that he was not present at the bus stand as 26 alleged and that he had seen the accused being shown in the television and therefore he is deposing falsely at the instance of the Police.
39. PW.33 - Harish who is the Police Sub-Inspector at Kalasipalyam Police Station has also stated regarding apprehension of the accused and presence of two mobile phones, one key of the room at Siddalingeshwara Temple at Yediyur and one bag and other articles. He has also spoken regarding the seizure of the articles from the possession of the accused.
40. PW.34 - S K Umesh who is the Inspector of Police at Kalasipalyam Police Station during the relevant period has also spoken regarding apprehension of the accused, recovery of the key chain belonging to the Temple, one godrej key and other articles as per Ex.P21. He has further stated that he has immediately subjected the aforesaid articles to PF No.117/2007 and submitted a report to the court. It is in his evidence that the accused had given a statement before 27 him stating that she has committed the murder at various places by poisoning lonely women. The accused was subjected to custody by registering the case u/s. 41[d] of the Cr.PC and she was produced before I Additional Chief Metropolitan Magistrate, Bangalore, who had remanded the accused to judicial custody. It is in further evidence of PW.34 that PW.1 had approached to the Kalasipalyam Police Station on 2.1.2008 and had given a complaint and identified the accused. Thereafter, the entire papers were transferred to Amruthur Police Station since the incident of murder had happened within the jurisdiction of the said Police Station. It is suggested to this witness that he has not apprehended the accused at all nor any articles were recovered from the possession of the accused on the date of the alleged apprehension, but the same were denied.
41. PW.35 - Anjaiah who is the Assistant Sub-Inspector at Amruthur Police Station is a person who has received the complaint from PW.1 as per Ex.P2 and registered a case in 28 UDR No.16/2007 and a report is prepared by him as per section 174 of Cr.PC and the matter was reported to the Taluk Executive Magistrate for further action.
42. PW.36 - Radhakrishna who is the Sub-Inspector of Amruthur Police Station has stated that after registering the case in UDR No.16/2007, he has visited the scene of occurrence, drawn the mahazar and also subjected the dead body for inquest proceedings as well as post mortem report to PW.16 and further conducted a mahazar where under one coconut, one lemon, one spectacle and one box of sandalwood and one yellow saree were seized from room No.28 where the dead body of the deceased was found. Since nobody came forward to claim the dead body, the dead body was buried in the open space outside the said Temple. It is further stated by him that subsequently it was disclosed that the accused had caused the death of the deceased and the viscera and other parts of the body were carried to Forensic Science Laboratory and thereafter during 29 investigation it was disclosed that the deceased was subjected to murder by the accused. The papers were handed over to the superior officials for further investigation by him.
43. PW.37 - Rangaswamy who is the signatory to Ex.P12 has stated that he has signed Ex.P12 which is a receipt issued by PW.12 at the time when the accused had pledged MO No.6. He has identified Ex.P10 & Ex.P11 as documents created at the time of pledging of articles with PW.12. It is suggested in the cross-examination that no such recovery has been made at the instance of the accused as per Ex.P12. However, such suggestion has been denied by PW.37.
44. PW.38 - Bhagyamma is another woman constable at the Kalasipalyam Police Station who has also corroborated the fact of apprehension of the accused and recovery of articles 1 to 15 as per Ex.P21 - mahazar prepared at the Kalasipalyam Police Station.
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45. PW.39 - Balaramegowda, Police Inspector, who was the Circle Inspector of Police in Kunigal during the relevant period has completed the investigation and has filed the charge sheet.
46. From the evidence of the prosecution witnesses, the following circumstances have been held by the learned Sessions Judge as proved by the prosecution.
1. Motive;
2. Deceased was last seen together with the accused;
3. Recovery of the Key-bunch of Room No.28 from the possession of the accused; and
4. Recovery of jewels-Mo.6 at the instance of the accused.
47. Apart from the above circumstances, it is also seen that the accused had admitted the guilt when her plea was recorded. From the evidence discussed by us above, we also concur with the finding of the learned Sessions Judge that the prosecution has proved the last seen theory through the evidence of PWs.7 & 8, who have categorically spoken 31 regarding the presence of the accused with the deceased. The evidence of PW.12 coupled with documents marked as Exs.P10, P11 & P12 establish that the jewels pertaining to the deceased was recovered at the instance of the voluntary statement of the accused. The evidence of PW.12 has been further corroborated by the evidence of PW.13 and PW.36 and also Ex.P12-Mahazar drawn at the shop of PW.12. The evidence of PWs.27 to 30, 32 to 34 and 38 clearly establish that the accused was apprehended at Kalasipalya Bus Stand and at that time she was in possession of the key-bunch, which belong to the Yediyur Temple. The key-bunch further contains the Room No.28 mentioned in it and therefore, this circumstance also has been established. From the evidence adduced by the prosecution, the motive of the complaint for unlawfully gaining from the gold jewels possesses by the deceased is also established. Under the circumstances, the finding of the learned Sessions Judge insofar as these incriminating circumstances is concerned is based on the evidence on record and is neither perverse nor against the 32 settled principles of law. Though the learned Prosecutor has drawn our attention to the answers given by the accused in the 313 Cr.P.C. statement and also the fact that the accused at the first instance admitted the guilt, we are not placing our reliance on the said material on record but on the basis of the independent evidence adduced by the prosecution, we are of the opinion that the prosecution has established that the deceased has been done to death by the accused on 15.12.2007 and therefore the learned Sessions Judge has rightly convicted the accused persons.
48. We, therefore, hold that there is no error or illegality in the judgment of conviction passed by the learned Sessions Judge and hence we confirm the order of conviction against the accused.
In Crl.RC.No.5/2009 (per Shylendra Kumar, J)
49. In view of our above judgment, sustaining the judgment and conviction by the trial court convicting the appellant for an offence punishable under Section 302 of 33 I.P.C., the reference made by the Sessions Judge for confirmation of the punishment of death sentence has become live and is required to be examined.
50. We have heard Sri H.S.Chandramouli, learned State Public Prosecutor appearing for the petitioner/State and Sri G.M.Ananda, learned Counsel appearing for the respondent/accused on the reference about the confirmation of the death sentence as imposed by the learned Sessions Judge.
51. The learned Judge of the Sessions Court after hearing the accused and her Counsel has consciously imposed the punishment of death sentence after finding the accused guilty of the offence.
52. We have perused the order relating to imposition of sentence. The learned trial judge has described that the accused person was quite stable; that the statutory provision provides the imposition of death sentence as an 34 alternative to imprisonment for life and on hearing the accused person, she has stated in one breath that she should be hanged, but has also stated that she has two daughters and one son, they are studying and they are dependent on her for their livelihood etc. This was also the submission of the learned Counsel for the accused.
53. A look at this narration brings out a contradiction, as the inference of the learned Sessions Judge that the accused was stoic, is not a proper inference as she had pleaded that she has children who had dependent on her and therefore she should be given a lesser punishment, when there is an option to impose a punishment of lesser gravity.
54. Even the statement that she asked, to be hanged or to be done away, and in the same breath pleading for leniency, as both her children are dependent on her etc., indicates a disturbed mind and not a balanced state of mind. We find that the learned Sessions Judge discussing death sentence as an easier way out for the accused, as a person punished 35 by imposing death sentence would feel the agony only for a few minutes, whereas if a person is imposed imprisonment for life, it would be a life long agony for the person. This approach is yet again not a proper approach to the question of judicial functioning of imposing sentence, particularly under Section 302 I.P.C.
55. However, learned Sessions Judge has shown his awareness that death sentence can be imposed in a rarest of rare case, which is the development of law in the context of Section 302 of IPC, ever since the Judgment of the Supreme Court reported in AIR 1980 SC 898 in the case of BACHAN SINGH v. STATE OF PUNJAB, upholding the constitutional validity of Section 302 of IPC and sustaining the punishment of imposition of death sentence on a person convicted for committing murder or dacoity with murder, the judicial trend has been more to tow the minority view expressed by Justice Bhagavathi and the Courts have become very conscious to the enabling provision in law and have been 36 exhibiting very great reluctance to the judicial function of snuffing out life of a person by the imposition of death sentence, though it is an alternative as provided under Section 302 IPC. It is only in the rarest of rare case that death sentence is imposed as of now and definitely not as a matter of course. This is also the requirement of law as is indicated in section 235(2) and section 354(3) of the code, reading as under:
235. Judgment of acquittal or conviction -
1. xxx
2. If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
354. Language and contents of judgment -
1. xxx
2. xxx
3. When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, 37 in the case of sentence of death, the special reasons for such sentence.
56. However, what is the 'rarest of rare case' is not very clear nor is discernable from the Judgments as have evolved thereafter. One common thread in judgments after BACHAN SINGH's case (supra) is that a murder committed in a barbaric manner, inflicting utmost agony and pain on the victim deliberately and the accused persons displaying perversity, such as a deprived mind which derives pleasure from the heinous act are by and large treated as situations where the extreme punishment may be justified. In the case of MACHHI SINGH v. STATE OF PUNJAB [1983 SCC (CRI) 681] relied upon by the learned SPP, the Supreme Court has culled out the guidelines as indicated in BACHAN SINGH's case for justifying imposition of death sentence as under:
(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'.38
(iii) Life imprisonment is the rule and death sentence is an exception. 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 has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the opinion is exercised.
57. Learned Judge of Sessions Court has observed that the accused person has not shown any respect for law or fear of god or any concern for the society and has gone about all her criminal acts with a degree of preplanned precision and has executed it without a second thought and though she is herself a lady has lost sight of this fact and has indulged in the most heinous conduct of administering poison to another lady and murdered her for gain, resulting in 39 permanent sorrow to the kith and kin of the deceased. Learned Sessions Judge has observed this conduct of the accused is a justification to hold that the present situation is a 'rarest of rare case' justifying the imposition of extreme punishment.
58. In this regard, learned prosecutor has submitted that a reference, when made has to be independently examined by the High Court for the confirmation of the sentence and reasons given by the learned Sessions Judge, assuming for arguments sake, but without conceding, that the reasons are found to be not adequate or not cogent; that even then, the High Court has to examine this question of confirmation of the death sentence independently and in this regard has submitted that the present situation is a fit case for confirming the extreme punishment of death sentence imposed on the accused person.
59. To put it in other words, submission of Sri H.S.Chandramouli, learned SPP is that even if the learned 40 Sessions Judge has not given proper reasons but if it is otherwise found to be a situation warranting imposition of extreme punishment, imposition of death sentence should be confirmed and the reference answered accordingly.
60. It is for this reason, learned Prosecutor has submitted that the accused person being herself a lady, has acted in a most inhuman manner in committing the murder of another lady; that she has planned the offence in a meticulous manner; that she has befriended the deceased persons, even months before the criminal act; that planning has been very meticulous to commit murder for robbing the jewels on their person; that it is also very well planned and employment of the poison cyanide shows her criminal mind not to leave anything to chance but to murder the person and such circumstances indicate that she is a person of great menace to the society and the human kind and therefore, justifies the extreme punishment.
41
61. Learned Public Prosecutor has also brought to our notice that even in the voluntary statement that had been recorded at the time of arrest by the Kalasipalya Police, she has indicated that she had committed not less than 7 murders and by the same modus operandi of using cyanide to kill her victims. This is a situation, where the accused person has committed murders serially and in a systematic manner and by a common modus operandi and by employing cyanide poison and choosing gullible, old and innocent ladies as victims, this conduct also justifies the imposition of extreme sentence; that such planning and series of acts of murder also clearly exhibit the depravity of the mind of the accused person.
62. In this regard, the Prosecutor has also brought to our notice the following Judgments, viz.,
1. AIR 1977 SC 1812 [JOSEPH PETER v. STATE OF GOA, DAMAN AND DIU];
2. 1983 SCC (Cri) 681 [MACHHI SINGH AND OTHERS v.
STATE OF PUNJAB];
42
3. (1999)8 SCC 389 [RAMJI RAI AND OTHERS v. STATE OF BIHAR]
4. 1994 SCC (Cri) 358 [DHANANJOY CHATTERJEE ALIAS DHANA v. STATE OF W.B.]
63. While in the case of JOSEPH PETER [supra], which was prior to BACHAN SINGH's case, the Supreme Court has declined to interfere with the imposition of death sentence to the accused by the trial court and the reference being confirmed by a single member bench of the judicial commissioner of Goa, Daman and Diu for the reason that the bench did not comprise of two members of the High Court. There is not much examination of the circumstances justifying imposition of death sentence, but only an observation that it is one of the punishment as provided in law.
64. Of course in BACHAN SINGH's case, elaborate discussions have been made, ultimately the validity of the statutory provisions has been upheld and imposition of death sentence as a punishment under the provisions of the 43 Cr.PC is sustained. It is after BACHAN SINGH's case, there is greater awareness about the justification of death sentence being only in rarest of rare case and not otherwise i.e., the development as a judicial view and has elicited recognition in this regard.
65. Of course, in the later Judgments like same situation as indicated, one justified the imposition of death sentence even where the High Court had altered the death sentence into one of imprisonment for life, the Supreme Court has not interfered in DHANANJOY CHATTERJEE's case. Even a perusal of all the above Judgments does not indicate as to in which precise situation, imposition of death sentence as a punishment can be justified. Ultimately the fact situation of a particular case, the circumstances, the conduct of the accused persons etc., the enormity of the offence on the victims etc., all have to be taken into consideration and it is the conscience of the learned Judge imposing the sentence that should be satisfied that it is a rarest of rare case 44 warranting/justifying imposition of such extreme punishment. An element of subjectivity is inevitable in a situation of this nature, though law, by itself, does provide death sentence as one mode of punishment in cases coming under Section 302, though statute does regulate it through sections 235(2) and 354(3) of the code and being supplemented by the guidelines indicated in BACHAN SINGH's case (supra) and noticed in MACHHI SINGH's case.
66. While imposing the punishment of this nature, considerations such as a life convict being a burden on the State or a death sentence can be executed in a couple of minutes, whereas the imprisonment for life prolongs for a life period of the convict and therefore becomes an agony for the guilty etc., are all irrelevant.
67. The manner in which the crime is committed in the present case though no doubt indicates that the accused person had some planning for committing murder for gain, we find that we cannot either place reliance or take note of 45 the fact of the accused being involved in other cases as a relevant factor for imposition of the extreme punishment, merely based on a statement that she is involved in other cases and that this being quoted by one of the prosecution witnesses while deposing i.e. PW.39-Investigating Officer, he having referred to this aspect of the accused having made a statement before the police that she is involved in seven more cases of similar nature and has employed the same modus operandi etc.
68. Though reliance is also placed by the learned Public Prosecutor and our attention is drawn to Section 236 of the Cr.PC, a perusal of the statutory provision indicates that it is only in a situation, wherein, the person had been charged under section 211(7) of the Cr.PC and had been convicted of any offence earlier and due to the same is liable for imposition of an enhanced punishment, this statutory provision has relevance and even the provisions of section 46 75 of penal code are not attracted in a situation where the offence punishable is under Section 302 of IPC.
69. While Section 75 is clearly not attracted, on the question of imposition of the extreme punishment of death sentence, one has to be guided only by the provisions of Section 302 of IPC and as judicially noticed by the Judgment of the Courts, some of which have been referred to above, we find that neither from the record nor from any enabling statutory provision one can take note of the conduct of the accused or antecedents of the accused for the purpose of imposition of Section 302 of IPC and no antecedent/conduct has been brought to our notice nor can we take judicial notice of the fact, though the learned Prosecutor has submitted the factum of accused being found guilty of the offence under Section 302 of IPC and convicted to undergo death sentence and in another case for conviction under Section 302 of IPC and imposed punishment for imprisonment of life and yet another case for punishment 47 under the very Section is under trial before the Sessions Court.
70. We decline to take note of this development which are not on record and as in the present case, no antecedents had been brought on record nor any other development brought on record etc., is taken note by the Sessions Judge while imposing sentence. Judicial notice can be taken of only the facts and situations referred to in Section 57 of the Indian Evidence Act, 1872 and not of a fact as is sought to be urged by the learned public prosecutor which is not made good by any document or record.
71. On reappreciation of evidence and from the record, while we find sufficient material to sustain the conviction, we do not find the present situation to be one that can be characterised as a 'rarest of rare circumstance' warranting imposition of extreme punishment of death sentence. 48
72. The fact that the accused is a lady, in our considered opinion cannot be put against her as is sought to be made out by the learned Sessions Judge or as submitted by the learned Prosecutor, but on the other hand is a mitigating circumstance in favour of the accused person and therefore we reject the reference, set aside the imposition of death sentence on the accused person and in place we sentence the accused person, who is found guilty of offence under Section 302 of IPC, to undergo Imprisonment for life with a fine of `10,000/-, in default, to undergo further one year simple imprisonment. The accused is entitled to set off the period undergone by her as an under trial prisoner by virtue of Section 428 Cr.P.C.
73. At this juncture, Sri H.S.Chandramouli, learned SPP has brought to our notice the Judgment of the Supreme Court in the case of SWAMY SHRADDANANDA (2) ALIAS MURALI MANOHAR MISHRA v. STATE OF KARNATAKA reported in (2008) 13 SCC 767 and submits that even if this Court should not uphold the imposition of death sentence, it 49 is a fit case where life sentence should be clarified and amplified as one for the rest of the life of the accused person.
74. Even on the aspect of making such a clarification, the Supreme Court itself has clarified that the perception of imprisonment for life, as a sentence of imprisonment for 14 years, is not conclusive but having regard to the vast hiatus between imprisonment for 14 years and death sentence if in a given situation, a punishment graver than imprisonment for 14 years is warranted, but stops short of being a rarest of rare case warranting imposition of death sentence, which is purely dependent on the facts and circumstances of each case, court may specify that the punishment of imprisonment for life may be for a longer period than 14 years; that remissions are to be allowed and in a given case it can be co-extensive with the life of the convicted person.
75. We do not find the present situation warrants a view of that nature to be taken in the facts and circumstances of this case and based on the record of the case, we would not 50 like to elaborate more on this aspect but make it clear that the imposition of punishment is imprisonment for life as is understood in its popular and normal sense and as executed otherwise.
76. Accordingly, Crl.A.434/2009 is dismissed and the Crl.RC.No.5/2009 is rejected, as indicated above.
77. The appeal and reference being heard over the past three days and learned Counsel for the appellant having put in considerable amount of effort and time, in preparation and presentation of the appeal, we fix the Counsel fee to be at `5,000/- and the learned Counsel for the appellant should be paid a sum of `5,000/- as fee for conducting this case.
Sd/-
JUDGE Sd/-
JUDGE AN/-, cp*