Karnataka High Court
The Registrar General vs Mukunda S/O Late Ramanna P on 13 September, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 13TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REFERRED CASE.NO.19 OF 2010
c/w
CRIMINAL APPEAL.NO.364 of 2013
IN CRIMINAL REFERRED CASE NO.19 OF 2010
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BENGALURU. ... PETITIONER
(By Sri: VIJAYAKUMAR S. MAJAGE,
ADDITIONAL SPECIAL PUBLIC PROSECUTOR)
AND:
MUKUNDA S/O LATE RAMANNA P
AGED ABOUT 32 YEARS
R/O GIRIGONDANAHALLI
MADHUGIRI TALUK
TUMAKURU DISTRICT ... RESPONDENT
(By Sri: PAVAN SAGAR, AMICUS CURIAE
VIDE ORDER DATED 05.09.2017)
2
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366 CR.P.C FOR THE
CONFIRMATION OF DEATH SENTENCE AWARDED TO ACCUSED
MUKUNDA S/O LATE RAMANNA.P. AGED ABOUT 30 YEARS, R/O
GIRIGONDANAHALLY, MADHUGIRI TALUK, BY JUDGEMENT
DATED 30.08.2010/31.08.2010 PASSED IN S.C.NO.60 OF 2008
ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-
V, MADHUGIRI.
****
IN CRIMINAL APPEAL NO.364 OF 2013
BETWEEN:
SRI. MUKUNDA
S/O SRI LATE P RAMANNA
AGED ABOUT 32 YEARS
RESIDENT OF GIRIGONDANAHALLI
MADHUGIRI TALUK
TUMAKURU DISTRICT. ... APPELLANT
(By Sri B K S SANJAY, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY BADAVANAHALLI POLICE
REPRESENTED BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU. ... RESPONDENT
(By Sri: VIJAYAKUMAR S.MAJAGE,
ADDITIONAL SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C BY THE ADVOCATE FOR THE APPELLANT/ACCUSED
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET
3
ASIDE THE ORDER DATED:30-08-2010 PASSED BY THE P.O.,
FTC-V, MADHUGIRI IN S.C.NO.60 OF 2008 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 366A, 376, 302 AND 201 OF INDIAN PENAL CODE
AND THE APPELLANT/ACCUSED IS SENTENCED FOR THE
OFFENCE UNDER SECTIONS 366A, 376, 302 AND 201 OF IPC.
ACCUSED BE HANGED UNTIL DEATH FOR THE OFFENCES AS
STATED ABOVE CUMULATIVELY.
****
THIS CRIMINAL REFERRED CASE C/W CRIMINAL APPEAL
COMING ON FOR FINAL HEARING THIS DAY, JOHN MICHAEL
CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT
The case of the prosecution is that on 13.12.2007, the accused induced a minor girl by name Sowmya, aged about 14 years to come with him from her school and took her to an isolated place at Pemmanahalli Halla, committed sexual intercourse on her and thereafter caused her death by strangulating her with a towel, removed her earrings, slashed her neck with a razor and dropped a boulder on her face and thereafter concealed the dead-body beneath a bush and on the next day, poured acid on the face of the deceased with a view to cause disappearance of the evidence of murder, thereby 4 committed the offences punishable under sections 366-A, 376, 302 & 201 Indian Penal Code.
2. On the basis of the complaint lodged by the father of the deceased (PW-1), on 16.12.2007 the PSI of Badavanahalli Police Station (PW-27) registered a case in Cr.No.16 of 2007 under Sections 302, 201 Indian Penal Code against five suspects named in the complaint. PW-30 the PSI took up the investigation, visited the spot, conducted the spot mahazar and inquest over the dead-body. He forwarded the dead-body for post-mortem examination and it was ascertained that the death was due to head injuries. Further investigation was continued by PW-31-PSI of the said police station. In the course of the investigation, PW.31 having come to know the involvement of the accused, arrested him on 31.12.2007. On the basis of the voluntary disclosures made by the accused, the Investigating Officer recovered a boulder, razor and an acid bottle said to have been used for the commission of the offence. The gold ornaments belonging to the deceased were recovered at the instance of the accused. Based on these incriminating materials, 5 PW-31 laid the charge sheet against the accused alleging commission of the above offences.
3. The accused having denied the charges, the prosecution examined 31 witnesses as PW-1 to PW-31 and produced in evidence 34 documents marked as Exs-P1 to P34 and the material objects at M.Os.1 to 18. The accused took up a defence of total denial and sought to examine CW-6 as his witness. However, he later gave up the examination of the said witness.
4. Based on the above evidence, the learned Fast Track Court Judge, Madhugiri, by the impugned judgment found the accused guilty of all the above offences. Further, the learned Fast Track Court Judge having noticed that the accused had committed the offences in a highly brutal and ghastly manner was of the opinion that it was a rarest of rare case found it proper to award capital punishment on the accused and directed him to be hanged until death.
5. The Trial court has made a reference under Section 366 of Cr.P.C. seeking confirmation of the death sentence. It is 6 numbered as Criminal Referred Case No.19 of 2010. The accused has preferred Crl.A.No.364 of 2013 challenging the order of conviction and the death penalty imposed on him by the trial court.
6. We have secured the records of the trial court and have heard Sri. Pavan Sagar, learned Amicus Curiae on behalf of the accused in Crl.R.C.No.19 of 2010 and Sri. Arjun, learned counsel for the appellant - accused in Crl.A.No.364 of 2013 and Sri. Vijayakumar S.Majage, learned Additional Special Public Prosecutor for State.
7(a) Sri.Pavan Sagar, the learned Amicus Curiae contends that the order rendered by the trial court is highly erroneous and against the basic principles of law and natural justice. The impugned order is cursory, peremptory and capricious. Accused was not named in the F.I.R. Instead, the finger of suspicion was directed right from the inception against one lawyer by name Shivanna who was having close intimacy with the deceased. It has come on record that ever since the commission of the offence the said lawyer Shivanna was absconding. The material 7 witnesses have deposed that the deceased and the said lawyer Shivanna were having illicit intimacy. In fact, the complainant himself had named the said Lawyer Shivanna as one of the suspects. Inspite of it, the Investigating Officer did not conduct any investigation to rule out the involvement of the said lawyer Shivanna making it evident that right from the inception, a deliberate attempt has been made to falsely implicate the accused.
7(b) The learned counsel further submitted that the F.S.L. report did not indicate any evidence of sexual intercourse, yet the trial Court has proceeded to convict the accused under Section 376 of IPC, which is patently illegal. He has taken us through the impugned judgment and has pointed out that the trial Court has based the conviction solely on the voluntary disclosure of the accused, which is impermissible in law. The so called voluntary statement is not produced in evidence. The trial Court has relied on the C.D. to support its conclusions. Even the C.D. is not proved in accordance with law. No certificate has been produced as required under Section 65B of the Indian 8 Evidence Act, 1872, to prove the authenticity of the C.D. When the voluntary statement itself is not proved in accordance with law, the consequent recoveries could not have been given any credence to record a conviction against the accused. Even otherwise, it is the submission of the learned counsel that none of the recoveries relied on by the prosecution relate to the accused. Therefore, the impugned judgment is liable to be set aside.
7(c) Further it is contended that the Trial Court has not assigned any reasons in support of its findings. The conclusion arrived at by the Trial Court that the case in hand falls within the category of rarest of rare case is contrary to the evidence on record and opposed to the facts and circumstances proved in evidence. Therefore, it is the submission of the learned counsel that the impugned judgment of conviction as well as sentence awarded by the Court below requires to be set aside by this Court.
8. Sri Arjun, the learned counsel has adopted the submissions made by the learned Amicus Curiae. 9
9(a) Sri.Vijayakumar S.Majage, learned Additional Special Public Prosecutor however has argued in support of the impugned judgment and the death penalty awarded by the Fast Track Court. He would submit that even though the Trial Court has not assigned any specific reasons in support of the findings, yet the impugned judgment reveals that the trial Court has considered all the evidence produced by the prosecution and has arrived at proper conclusions. The evidence let in by the prosecution conclusively establishes the fact that the deceased was last seen with the accused. The recoveries effected at the instance of the accused viz., the razor (M.O.11), acid bottle (M.O.10) and the stone boulder (M.O.9) clearly corroborate the medical evidence establishing the nexus between the accused and the offence committed by him. Even though the trial Court has not discussed all these material at length, yet the impugned judgment reflects that all these evidences have been considered and therefore, the findings recorded by the trial Court having been based on proper and acceptable evidence, the impugned judgment cannot be faulted with.
10
9(b) Supporting the sentence awarded by the trial Court, the learned Additional Special Public Prosecutor submits that the accused is none other than a close relative of the deceased. He made the complainant to believe that the offence was committed by lawyer Shivanna and his associates; but it has turned out that the accused intentionally misled the complainant. The positive evidence collected by the prosecution clearly indicates that the accused committed the dastardly act in a highly brutal and gruesome manner. He even went to the extent of spilling acid on the face of the deceased so as to cause disappearance of the evidence of murder and therefore, the act and conduct of the accused, the manner in which the accused has committed the offence, brings the case within the category of rarest of rare cases and hence, the imposition of death sentence was well merited in the facts and circumstances of this case and hence, prays for dismissal of the appeal and for confirmation of the death sentence.
11
10. We have considered the arguments advanced at the Bar, examined the records and have carefully perused the oral and documentary evidence relied by the prosecution.
11(i) PW-1 Nagarajappa is the father of the deceased. According to him, his daughter Sowmya was studying in 10th Standard at Gurudev Rural High School, Dandinadibba Madhugiri Taluk. On the date of the incident, i.e., on 13.12.2007, she had gone to school along with her brother Lohith, who was then studying in 8th standard. PW-1 had gone to attend a meeting at Tumakuru. At about 5.00 p.m., while he was returning from Tumakuru, his wife Renukamma informed him that Sowmya had not yet returned home even though her brother Lohith had reached home. She further informed him that her friend Radha informed her that the accused had gone along with the deceased to the school and hence, asked him to look for the accused. Hence, after getting down from the bus, PW-1 took his TVS Moped and went in search of the accused. He waited for the accused near a wine centre at Dandinadibba. At that time, he saw the accused and PW-7 Rajanna boarding a bus. He followed 12 them. Accused and PW-7 got down at Dodderi gate. He brought both of them on his moped to the house of his brother PW-19. The accused was fully drunk. PW-1 enquired him about the deceased. The accused stated that he had accompanied the deceased till Dodderi, and on the way having seen lawyer Shivanna speaking over phone near a coin booth, suspecting something, he went along with the deceased till Dandinadibba and handed over Rs.5/- to the deceased and her brother Lohith and came back. He pleaded ignorance about the disappearance of the deceased.
PW.1 has further deposed that on the following day i.e., on 14.12.2007, they continued the search. He went to the school of the deceased and met the Headmistress. In the presence of the Headmistress of the school, he enquired one Manjamma, the sister of the aforesaid lawyer Shivanna and came to know that the said Lawyer and deceased were having some kind of intimacy and his daughter was using the mobile phone given to her by lawyer Shivanna. On getting this information, he collected the phone number of lawyer Shivanna from Manjamma and asked him to come near the property of one Ramakka. PW.1, his 13 brother and other villagers questioned lawyer Shivanna. Lawyer Shivanna pleaded ignorance about the disappearance of the deceased.
On 16.2.2007 in the morning, while they were continuing their search, they came to know that a dead body of a girl was traced near Pemmanahalli Halla. PW-1 rushed to the spot and found that the dead body was that of his daughter. The body was bloated and maggots were seen on the face. The face was beyond recognition. On seeing her dress, chappal and innerwear near the body, PW-1, his wife and others identified the dead- body as that of the deceased. The police were informed. He submitted a written complaint to the police as per Ex-P1. He further stated that on the same day, the police conducted spot panchanama and inquest over the dead body. During his evidence, he identified the slippers, innerwear of the deceased M.Os.1 and 2, the bloodstained mud collected from the spot of occurrence during the spot mahazar and also the unstained mud M.Os.3, 4, 5 and 6. He also identified the gold earrings and side earrings worn by the deceased on the date of the incident as M.Os.7 and 8. Through this witness, the prosecution also got 14 marked the stone-M.O.9 used for the commission of the offence, acid bottle M.O.10, razor M.O.11. This witness further identified the watch and bangles worn by the deceased as M.Os.12, 13 and
14. The dress worn by the deceased on the date of the incident came to be identified as M.Os.15 and 16.
In his evidence, PW-1 has deposed that the accused was the son of his elder sister. He got married about 8-10 years back. Since the last six or seven years, he was roaming about without doing any work. Since March 2007, he has been residing in Giregondanahalli. He was frequently visiting the house of PW- 1 and also having food in their house. In the cross-examination of this witness, it is elicited that lawyer Shivanna was practicing in Tumakuru and he was involved in political activities. He was not married. PW-1 admitted in the cross-examination that sometime back, he had assaulted the father of the accused. But that incident had taken place about 10-15 years prior to the incident in question and the father of the accused had died two years back. It is also elicited from the mouth of PW-1 that on 13.12.2007, he had gone to Dodderi in his TVS Moped. 15
PW-1 has stood by his statement that at his instance, lawyer Shivanna as well as accused were questioned about their movements with the deceased on the date of her disappearance. He further asserted that he questioned the accused in the house of his brother and the accused denied his involvement in the disappearance of the deceased. Further, it is elicited that till the dead-body was traced i.e., from 14.12.2007 till 16.12.2007, the accused was with PW-1, but, lawyer Shivanna was not found in the village. It is further elicited that in terms of the complaint lodged by him, the police interrogated three of the suspects named in the complaint and having ascertained that they were not involved in the disappearance of the deceased, they were later let off.
11(ii) PW-2 Ratnamma is a panch witness to the inquest mahazar Ex-P3. Through this witness, the prosecution has marked the watch and bangles found on the dead-body viz., M.Os.12 and 13.
11(iii) PW-3 Renukamma is the mother of the deceased. She has deposed in line with the statement of PW-1 regarding 16 the events that had taken place from the time deceased had left to the school. She has specifically stated in her evidence that in the evening Radhamma-PW-5 a friend of the deceased who was then studying in 9th standard brought the school bag of the deceased and informed her that the deceased had gone with her uncle viz., the accused leaving the bag in the school. PW-3 has further stated that she immediately informed this matter to PW-1 and asked him to contact the accused to ascertain the whereabouts of her daughter. She has also identified the gold ornaments belonging to the deceased as well as the dress and the slippers worn by the deceased at the time of the incident.
11(iv) PW-4 Nagarathnamma is the Headmistress of Gurudev Rural High School, Dandinadibba, where the deceased was studying at the relevant time. Through this witness, the prosecution has marked the certified birth extracts produced by her at Ex-P4 regarding the date of birth of the deceased. The copy of the transfer certificate produced by her is marked at Ex- P5. She has confirmed in her evidence that on 13.12.2007, deceased did not attend the school and was marked absent. 17 Nothing has been elicited in the cross-examination of this witness with regard to the genuineness of the certificates issued by her at Exs-P4 and P5. In the cross-examination, it was suggested to her that in connection with the incident, the Coordinator of "Crime Story" had arranged an interview with her and during the interview, she had admitted that lawyer Shivanna had given a letter to the school requesting her not to take any action against the deceased if she was late to the school. She categorically denied the said suggestion and reiterated that no such letter was given by lawyer Shivanna on behalf of the deceased.
11(v) PW.5 Radha is the schoolmate of the deceased. At the relevant time, she was studying in IX Standard. According to her, they were going to school together. On 13.12.2007 while she was going to the school along with her sister Kavitha at about 10.00 a.m., she saw the deceased and the accused following them. They reached the school at about 10.00 a.m. After about five minutes, the deceased and the accused came near the school. The deceased handed over her school bag to 18 PW.5 and told her that she would go with the accused to Badavanahalli and requested PW.5 to hand over the bag to Rajeshwari and accordingly, she handed over the said bag to Rajeshwari. She informed this matter to the mother of the deceased. According to her, the police recorded her statement near the school. During her evidence, she identified the clothes of the deceased as well as the watch and the bangles namely M.O.12 and M.O.13. Even in the cross-examination, she reiterated that on that day, the deceased was wearing ear studs and side ole, and when she was walking to the school, the deceased was coming from behind and at that time, the accused was wearing pant and shirt.
11(vi) PW.6 G.N.Lohith is the brother of the deceased. He has deposed in line with the testimony of PW.5 stating that on 13.12.2007, when he and the deceased were going to the school, the accused joined them stating that he has got some work near Dandinadibba. He has further stated that he has seen the deceased handing over her school bag to PW.5 Radha and has further stated that he has seen the accused and the 19 deceased talking with each other on that day. In the cross- examination, he answered that on that day, he reached the school between 9.30 a.m. and 9.45 a.m. He denied the suggestion that on 13.12.2017, on the way to the school, they met Lawyer Shivanna. Thus PW.6 has substantially corroborated the testimony of PW.5 with regard to the fact that the deceased and the accused had come together to the school and thereafter both of them went away from the school.
11(vii) PW.7 Rajanna is a neighbouring occupant. According to him, he was working in Bengaluru and he used to come to his village once in two or three months. About 1¾ years' back, one day he had gone to Gollarihatti gate. At that time, the accused took him to Madhugiri in Vijayanandi bus. They got down at Madhugiri private bus stand and went to Doom Light Circle. The accused asked him to sit there and went towards a jewellery shop. He returned after about half-an-hour. Both of them had meals and consumed liquor. The accused paid for it and in the evening at about 5.00 p.m, they returned to Kaimara and from there, they took a bus to Dodderi and when 20 they were alighting from the bus, PW.1 called accused No.1 and all the three of them went in the two-wheeler of PW.1 to the house of the brother of PW.1 by name Junjanna where PW.1 questioned the accused about his daughter. But the accused replied that in the morning he had gone near the school and had paid five rupees to her and he did not know anything more than that.
In the cross-examination, it is elicited that except on that day, on no other occasion, the accused had taken PW.7 with him for consuming liquor. PW.7 has further answered that on that day, he left the house at about 10.00 a.m. When he reached Sanjivapura, it was 1.30 p.m. and from there, he went to Kaimara and thereafter, the accused took him to Madhugiri. According to him, at that time, the accused was wearing a lungi and was carrying a striped towel on his shoulder. This evidence corroborates the testimony of PW.1 that on 13.12.2007 when he went in search of the accused, he found the accused at Dodderi and from there, he along with the accused and PW.7 proceeded to the house of his brother Junjanna where the accused was questioned about the whereabouts of the deceased. 21
11(viii) PW.8 Kanimaiah is the brother of Lawyer Shivanna. According to this witness, on 31.12.2007, the police had brought the accused to their village and the accused pointed out a bottle in the well and on the request of the police, he got into the well, removed the said bottle M.O.10 and the same was seized under a mahazar Ex.P6. He identified his signature Ex.P6(a) and also identified the bottle M.O.10.
In the cross-examination, he answered that his signature was taken by the police in the Police Station on the following day for having picked up the bottle. It is also elicited in the cross- examination that initially this case was registered against his brother Lawyer Shivanna and his brother was absconding since then.
11(ix) PW.9 Junjanna is the elder brother of PW.1. This witness is examined to speak to the fact that he was rearing pigs and for cleaning the pigsty, he had kept a bottle of acid which was missing from his house. This witness has identified the said bottle namely M.O.10 and has stated that he was shown the bottle M.O.10 in the Police Station. With regard to the other 22 aspects, this witness has stated that on tracing the dead body of the daughter of PW.1, he had been to the spot and noticed the injuries sustained by the deceased.
PW.9 has corroborated the testimony of PW.1 stating that on the date of the missing of the deceased, PW.1 had brought the accused to his house and in his presence, the accused was questioned about the whereabouts of the deceased and the accused pleaded ignorance and thereafter, the accused also joined them in searching the deceased. In the cross- examination, he clarified that the acid was kept by him for cleaning purposes and it was given to him by the person who had sold the pigs to him. He is specific in his evidence that the said acid was kept in a plastic bottle.
11(x) PW.10 Srirangaiah was working as a Conductor in KSRTC bus at the relevant time. He has been examined to speak to the fact that on 13.12.2007, the accused and the deceased had travelled in the KSRTC bus towards Gollarahatti gate, but this witness has failed to support the prosecution and has been treated as hostile. Even during his cross-examination, 23 he denied the suggestion that the accused and the deceased had traveled in the KSRTC bus on the said day.
11(xi) PW.11 Umesh is the Receiver of the gold ornaments. He is the owner of Maruthi Jewellers at Madhugiri. According to this witness, about 15 days prior to 31.12.2007, the accused had pledged a pair of gold ear rings and side ole with him for Rs.1,315/- and he produced the said ornaments as well as the receipt taken from the accused to the police. During his evidence, he identified the said receipt Ex.P8 and his signature thereon Ex.P8(a) as well as the signature of the accused Ex.P8(b) and also identified the gold ornaments M.O.7 and M.O.8. In the cross-examination, it is elicited that Ex.P8 is not a printed receipt, however, he admitted that the contents therein are in his handwriting. He further stated that he has been maintaining a printed receipt book in respect of the transactions carried out in his shop.
11(xii) PW.12 G.S.Sathyendrarao is the Assistant Engineer attached to the PWD Sub-Division, Madhugiri. This witness prepared the sketch of the scene of occurrence at the instance of 24 the Investigating Officer and in his evidence, identified the same as Ex.P10.
11(xiii) PW.13 M.P.Sudarshan is the Auto Driver who acted as a panch witness to the recovery mahazar. According to him, at the request of the police, he and another panch witness by name Srinivas participated in the recovery proceedings and in their presence, the accused showed the place of offence in respect of which a mahazar was drawn as per Ex.P11. Further, PW.13 deposed that the accused thereafter took PW.13 and the other panch witnesses and the police to the place where he had hidden the razor and also to the place where he had thrown the stone boulder and produced them before the police and the police seized the same by drawing the mahazars Exhibits P11 and P12 respectively. He identified the signature on the mahazars and also identified the boulder M.O.9 and the razor M.O.11. This witness further deposed that in the Police Station, a towel found on the shoulder of the accused was seized under a mahazar Ex.P12. He identified the said towel as M.O.17. This witness has further stated that thereafter accused took them to 25 an abandoned well and showed the place where he had thrown the acid bottle. PW.8 got into the well and removed the acid bottle. He identified the said bottle as M.O.10. Further PW.13 deposed that thereafter all of them were taken to Maruthi Jewellers and in the said shop, at the instance of the accused, the owner produced a pair of gold ear studs and side ole and the same were seized along with the receipt under a mahazar Ex.P9. He identified the gold ornaments as M.O.7 and M.O.8 and the receipt Ex.P8.
In the cross-examination, it is elicited that apart from the accused and the panch witnesses, videographer was also present during the seizure mahazars. He reiterated that his signatures were obtained on the respective panchanamas only after reading over the contents to him. With regard to the seizure of the acid bottle, it is elicited that the said bottle was looking like fiber glass and the said bottle was seized between 6.00 p.m. and 7.00 p.m. on that day.
11(xiv) PW.14 Rajanna is a resident of Giregondanahalli. He is a panch witness to the inquest mahazar Ex.P3 and also 26 witness to the spot mahazar Ex.P2. He has deposed about his participation in the said mahazars and has identified the properties seized therein.
11(xv) PW.15 Satish is one of the suspects who was named in the FIR. He is the brother of Manjamma. According to this witness, on 13.12.2007, he along with his sister Manjamma had been to the Dandinadibba High School as his sister was to go on tour on that day. This witness has deposed that when he reached the school at about 9.30 a.m., he saw the accused and the deceased coming near the school and thereafter, the deceased handed over her school bag to Radhamma and got into a bus which proceeded towards Badavanahalli. He has further deposed that he enquired the accused as to why the deceased had boarded the bus and the accused told him that he intended to buy a pair of chappals and clothes to the deceased as she had to go for tour. He further deposed that he and the accused together had tea and thereafter, the accused went in a bus to Badavanahalli and PW.15 returned to his village in another bus. 27
In the cross-examination, it is elicited that Manjanna and Prakash are his friends and they are usually found with Lawyer Shivanna. It is also elicited that PW.15 was working as a Bus Driver. Manjanna was working as an Auto Driver and Prakash was working as a Lorry Driver. He asserted in the cross- examination that on 13th, the accused was wearing a lungi and shirt and had put a towel on his shoulder. He denied the suggestion that to help Lawyer Shivanna and to harass the accused he has been deposing falsely before the court. He, however, admitted that he was one of the suspects named in the F.I.R., but he did not make any efforts to obtain anticipatory bail in the said proceedings. He further stated that the police did not enquire him prior to 31.12.2007.
11(xvi) PW.16 Lokesh is another material witness. According to him, he knows both the accused and the deceased. About two years prior to his examination before the court, he had been to Gollarahatti and was waiting for the person from whom he was supposed to collect the money. At that time, he saw the accused and the daughter of PW.1 namely the deceased 28 getting down from a bus at Gollarahatti gate. Thereafter, he saw them standing near a tamarind tree. After some time, the accused and the deceased Sowmya went towards a pathway leading to the fields. At that time, the accused was wearing a shirt and lungi and had put a towel on his shoulder. The deceased was wearing chudidar.
In the cross-examination, it is elicited that he cannot specifically state the date, year and the day when he saw the accused and the deceased getting down from the bus at Gollarahatti gate. But he asserted that both of them got down through the same door.
11(xvii) PW.17 Manjunath is a resident of Giregondanahalli. He has deposed that on 13.12.2007 at about 9.45 a.m., he got into a bus going towards Badavanahalli. At Dandinabibba, the deceased Sowmya got into the same bus and she got down near the Government Hospital at Badavanahalli. After about ten minutes when he came out of the hospital, he saw the deceased and the accused standing in front of the hospital. By then, a bus going towards Tovinakere came to the 29 spot. The accused and the deceased got into the said bus and went towards Tovinakere. Two or Three days thereafter, he came to know about the murder of the deceased. This witness has also stated that when he saw the accused on that day, he was wearing shirt, lungi and a towel. The deceased was wearing pink colour dress.
In the cross-examination, it is brought out that when the deceased got into the bus on that day, it was about 9.45 a.m. He reiterated in the cross-examination that when he came to the bus stand, both the accused and the deceased were standing together and the accused was wearing shirt, lungi and a towel and the deceased was wearing pink colour midi.
11(xviii) PW.18 B.A.Shanthakumar is a photographer. According to this witness, on the instructions of the Investigating Officer, he took the photographs of the dead body and furnished the same to the Investigating Officer. Through this witness, positive prints are marked as Exhibits P13 to P15 and Exhibits P18 to P20 and the negatives are marked as Ex.P23. 30
11(xix) PW.19 Raju is a panch witness to the mahazar Ex.P24 whereunder the watch and the bangles found on the dead body were seized. However this witness has failed to support the prosecution and is treated as hostile.
11(xx) PW.20 Srinivas is another panch witness for seizure mahazar Ex.P25 whereunder the stone boulder was seized. Even this witness has failed to support the prosecution and is treated as hostile.
11(xxi) PW.21 M.S.Nagaraju is a photographer who took the video of the recovery proceedings. He has stated that at the instance of the Investigating Officer, he videographed the proceedings of the recovery of the razor, stone, acid bottle and produced the same before the Investigating Officer. The CD was marked as M.O.18. Here itself it is relevant to note that no objection was taken by the defence for admitting the said CD into evidence.
In the cross-examination however it is elicited that his statement was not recorded by the police and that he handed over the cassette and the DVD to the police on the following day. 31 Further he answered that M.O.18 consists of both audio and video.
11(xxii) PW.22 P.G.Krishnamurthy is the Police Constable who collected the articles found on the deceased and produced them before the Investigating Officer.
11(xxiii) PW.23 Lakshminarayana is another Police Constable who had participated in the recovery of the razor, stone boulder, acid bottle and the gold ornaments at the instance of the accused.
11(xxiv) PW.24 Dr.Umeshbabu.R. was the Assistant Professor of Siddartha Medical College, Tumakuru. He conducted the post mortem examination and issued the Post Mortem Report as per Ex.P27. He has narrated the condition of the dead body and has stated that the dead body was decomposed, discoloured, distended and disfigured with maggots crawling all over the body. Soft tissues over face, head and neck were missing and scalp hair was missing. On external examination, there were crushed injuries over middle third of 32 face with both cheek bones and upper jaw fractured irregularly and separated from skull and brought by police separately which corresponds to fractured sites. Irregular fissure fracture extending from the mentioned injury to the roof of the right orbit was also present. According to this witness, all the injuries were ante mortem in nature and during the examination, he collected vaginal swabs and vaginal smear and sent them to Forensic Science Laboratory and issued a provisional opinion to the effect that the death was due to head injury sustained.
The Post Mortem Report issued by this witness has been marked as Ex.P27. This witness further deposes that on obtaining the F.S.L. Report as per Ex.P29, issued final opinion to the effect that the death was due to head injury sustained. He has further stated that as per F.S.L. Report, spermatozoa was not detected in vaginal swab and smears. The chemical analysis of contents of glass bottle and mud sample showed the presence of nitric acid. The final opinion of issued by PW.24 has been marked as Ex.P28.
In the cross-examination he answered that the acid bottle seized during the proceedings was not sent for examination and 33 he did not issue any opinion with regard to the said bottle. Further he answered that the injuries sustained on the face of the deceased did not appear like burn injuries.
11(xxv) PW.25 Hanumanthachari is the Village Accountant of Madhugiri village. Through this witness, the RTCs relating to Sy.Nos.27 and 29 are marked as Exhibits P30 and P31.
11(xxvi) PW.26 G.Hanumanthareddy was the C.P.I. of Madhugiri Circle. According to this witness, since the C.P.I. of Badavanahalli was on leave, on the oral instructions of the Dy.S.P., he took over investigation in this case and after the return of the C.P.I., handed over the case file to PW.31.
In the cross-examination he has stated that during the investigation, he tried to apprehend Lawyer Shivanna, but he was not successful.
11(xxvii) PW.27 P.Gundappa is the A.S.I. who received the complaint and registered the F.I.R. as per Ex.P32. 34
11(xxviii) PW.28 Sayed Ussain is the Police Constable who carried the seized articles for chemical examination to F.S.L. and submitted his report.
11(xxix) PW.29 Dr.B.V.Suryanarayana Reddy is the Medical Officer who examined the accused and issued his opinion as per Ex.P34.
11(xxx) PW.30 G.Shivaprasad was the PSI of the Badavanahalli Police Station who visited the spot of occurrence and conducted the spot mahazar and the inquest mahazar as per Exhibits P2 and P3.
11(xxxi) Kanakalakshmi B.M. is the Investigating Officer. She took over the investigation on 21.02.2007. During the course of investigation, she having come to know the involvement of the accused, on 31.07.2007, she arrested the accused. Pursuant to the voluntary statement of the accused, seized the towel which the accused was wearing on his shoulder by drawing up a mahazar. She also recovered the stone boulder, acid bottle and razor and also the gold ornaments at the instance 35 of the accused and after obtaining the necessary reports, laid the charge-sheet against the accused. When a specific question was asked to this witness as to whether she made any attempt to investigate the involvement of lawyer Shivanna in the alleged incident, she answered that she did not find any necessity of making any enquiry in that regard since, by then, lawyer Shivanna had applied for anticipatory bail and the witnesses examined by her had disclosed the involvement of the accused in the incident in question. She has further stated that the recovery the proceedings were got videographed and she also recorded the statement of the videographer.
12. We have referred to the above evidence at length for the reason that the Trial Court has not adverted to it in the impugned judgment. On analyzing the above evidence, it could be seen that the case of the prosecution is rested mainly on the following circumstances namely:
a. On the date of the incident, accused was seen taking the deceased from the school. 36 b. The accused and the deceased were last seen together near the spot of occurrence; c. The recovery of the stone boulder, razor and acid bottle at the instance of the accused;
d. The recovery of the gold ornaments of the deceased at the instance of the accused.
13. In proof of the first circumstance, PW.5 - the schoolmate of deceased has unequivocally stated on oath that on the date of the incident, in the morning, she noticed the accused and the deceased walking behind them when she was going to school. PW.6, the brother of the deceased has corroborated the say of PW.5 in this regard. Even though the testimony of these witnesses is assailed on the ground that they are related and interested witnesses, but looking to the fact that PW.6 being the brother of the deceased and PW.5 being the schoolmate who used to regularly accompany the deceased to the school, their evidence cannot be dubbed as partisan or interested.
Relationship of the witnesses with the deceased cannot be a ground to disbelieve their testimony. On the other hand, both 37 these witnesses are proved to be natural witnesses in as much as they had seen the accused accompanying the deceased on their way to school. Therefore, merely on account of their relationship with the deceased, their evidence cannot be discarded or disbelieved. Their evidence is duly corroborated by testimony of PW.15 and PW.16 and PW.17. The evidence of PW.15 would indicate that after leaving the school, the deceased and the accused boarded the bus proceeding to Badavanahalli. The evidence of PW.16 indicates that the accused and the deceased got down at Gollarahatti Gate and they were found standing in front of the hospital. PW.17 has stated that he saw the accused and deceased standing in front of the hospital and thereafter they proceeded towards Thovinakere. Undeniably, PWs.15, 16 and 17 are disinterested and independent witnesses. There is absolutely no reason to view the testimony of these witnesses with suspicion. From the evidence of PW.15, it is established that accused and the deceased were seen going to Badavanahalli in a bus. The evidence of PW.17 indicates that from Badavanahalli, both of them boarded the bus and proceeded towards Thovinakere. The evidence of PW.16 38 indicates that both of them got down at Gollarahatti. The sequences of movements narrated by these witnesses clearly establish that the accused after taking the minor from the school, took her in the bus and both of them were seen together going towards the spot of incident immediately preceding the incident. Thus, by examining these witnesses, the prosecution has conclusively established the fact that on the date of the incident, accused had taken the deceased with him and they were seen together near the spot of occurrence soon before the incident.
14. In order to prove the circumstance of recovery of the stone boulder, acid bottle and the razor, the prosecution has let in the evidence of the panch witnesses as well as the investigating officer who have spoken about the recovery of these objects at the instance of the accused. But in appreciating the evidence in this regard, it is relevant to note that the specific case of the prosecution is that on the following day of the incident, the accused spilled acid on the face of the deceased with intent to cause disappearance of the evidence of murder. 39 But on analyzing the entire material, we do not find anything on record to show any traces of acid either on the face or other parts of the dead body. None of the witnesses who saw the dead body at the earliest point of time have stated that they noticed any burnt marks on the face or other parts of the dead body of the deceased. On the other hand, the evidence of PWs.1 and 3 would indicate that when they saw the dead body, the face was crushed, the skin on the face and head was peeled out. Even in the inquest mahazar, there is no mention about the presence of chemical substance on the body or clothes of the deceased. More importantly, PW.24 who conducted the autopsy has no where mentioned in the post mortem report Ex.P27 about the traces of chemical substances or the burn marks either on the face or body of the deceased. On the other hand, in his cross-examination, he has categorically stated that he did not find any burn marks on the body of the deceased, thereby ruling out the use of any acid or chemical substance as contended by the prosecution.
40
15. The absence of any traces of the use of chemical substance completely negates the theory of acid being spilled on the face of the deceased to cause disappearance of evidence of murder as sought to be made out by the prosecution. The F.S.L. report - Ex.P29 indicates that the traces of acid were found in the bottle but not on the dead body. There is also nothing to show that the acid found in the acid bottle MO.10 was corrosive in nature. Thus there is absolutely no material whatsoever, to hold that the acid was spilled on the dead body. When the prosecution has failed to establish that the acid was spilled on the dead body, we do not find it necessary to discuss the evidence produced by the prosecution in proof of the recovery of the acid bottle MO.10.
16. Likewise, in our opinion, the evidence regarding the recovery of the razor MO.11 also does not help the prosecution to prove the complicity of the accused in the incident in question. The evidence on record does not indicate that the deceased had sustained any cut injury on the face or on the neck. Therefore, even if the evidence produced by the 41 prosecution in proof of the recovery of the razor is believed, in the absence of any evidence to show that the deceased had sustained any cut injury which could have been caused by a sharp edged weapon like razor, even this evidence, in our opinion, cannot be held against the accused. In this regard, it is relevant to note that PW.24 - the Medical Officer who conducted the post mortem examination has nowhere stated in the post mortem report Ex.P27 that the deceased had either sustained any cut injury on her neck or that the death was caused on account of the slashing of the neck as sought to be made out by the prosecution. On the other hand, PW.24 is definite in his evidence that the death was caused due to the head injury sustained by the deceased. The photographs produced by the prosecution at Exs.P13 to P22 do not show any traces of blood either on the chest portion or around the neck to show that either before crushing the head or thereafter, the throat of the deceased was slashed with a razor so as to connect the said razor MO.11 to the accused. That apart, there is nothing on record to show that MO.11 was sent for chemical examination to ascertain the presence of any blood stains matching with the 42 blood of the deceased. Even the panch witnesses have not stated that they noticed any blood stains on the said razor at the time of seizure. Therefore, the above evidence does not inspire confidence to hold that the razor MO.11 recovered at the instance of the accused was used for slashing the neck of the deceased. As a result, we hold that evidence produced by the prosecution in this regard does not help the prosecution to connect the accused to the murder of the deceased.
17. Insofar as the other incriminating circumstance is concerned, we find that the evidence produced by the prosecution in proof of the recovery of the stone boulder merits acceptance. The evidence of panch witnesses examined by the prosecution PW.13 and the evidence of the investigation officer and the evidence of the videographer PW.21 goes to show that on 31.12.2007, the accused led the police officials and the panchas to the spot and at his instance the stone boulder - MO.9 was recovered. Undisputedly PW.13 the panch witness is an independent witness. No circumstances are brought out in his cross-examination to disbelieve the testimony of this witness 43 either with regard to the recovery of MO.8 or the identification thereof. In the recovery mahazar - Ex.P25 there is a specific mention that the said stone contained traces of blood. Even though there is no evidence to show that the stains found on the stone were subjected to chemical examination, yet the evidence of PW.24 and the contents of the post mortem report Ex.P27 indicate that the death was caused due to the head injury sustained. In Ex.P27 as well as in his evidence PW.24 has clearly stated that on examination of the dead body, he found crush injury over the face and cheek bones and were separated from the skull. The evidence of PW.24 with regard to the cause of death correspond to the stone boulder recovered at the instance of the accused.
18. The other important circumstance which directly connects the accused to the incident in question is the recovery of the gold ornaments belonging to the deceased. The fact of recovery of these ornaments at the instance of the accused is duly proved by the evidence of PW.13 and the evidence of Investigating Officer as well as the testimony of PW.11, the 44 receiver of the gold ornaments. PW.11 has unequivocally stated in his evidence that the accused had pledged M.Os.7 and 8 about 15 days prior to 31.12.2007 for Rs.1,315/-. The oral testimony of PW.11 is duly corroborated by the receipt produced by him. This receipt contains the signature of the accused. There is absolutely no cross-examination on this aspect nor is there any explanation by the accused as to the possession of these ornaments.
19. Though the learned Amicus Curiae has vehemently contended that the ornaments recovered during the investigation are not duly identified as that of the deceased and that there is no clear evidence to show that the very same articles namely MOs.7 and 8 were robbed from the person of the deceased, yet in appreciating this contention it needs to be noted that the prosecution has adduced consistent evidence of the parents, relatives and a schoolmate of the deceased to show that the ornaments recovered at the instance of the accused were worn by the deceased on the date of the incident. The evidence of PW.1, PW.3 and PW.5 in this regard has not been discredited nor 45 has the defence brought on record any circumstance to show that the deceased was not wearing golden ear rings or side ole on the date of the incident or that she was wearing some other type of ornaments other than M.O.7 and M.O.8. PW.1 and PW.3 being the parents and PW.5 being the peer of the deceased, in our opinion, are the most competent witnesses to speak about the identity of these ornaments. Therefore, we do not have any hesitation in accepting their evidence in proof of the identification of the ornaments worn by the deceased on the date of the incident.
20. In so far as non-marking of the voluntary statement leading to these recoveries is concerned, it is not the plea of the accused that his voluntary statement was not recorded preceding the recoveries. The Investigating Officer and the panch witnesses have consistently stated about the factum of recording the voluntary statement and have specifically deposed about the contents thereof. It is trite law that voluntary statement by itself is not admissible in evidence. Under section 27 of the Evidence Act, what renders admissible is the 46 knowledge or the fact leading to the discovery. As explained by the Hon'ble Supreme Court in (1978) 4 SCC 90 - CHANDRAN vs. THE STATE OF TAMIL NADU, there are two ways by which a statement causing the recovery could be proved.
(i) by reproducing the substance of the statement made before the Investigating Officer or panchas;
(ii) by incorporating the extract of the alleged statement in the mahazar.
Both these requirements are seem to have been duly complied with. PW.13 - the panch witness and the Investigating Officer have not only stated about the voluntary statement made before them, the recovery mahazars referred above also contain the extracts thereof. That apart, the C.Ds., produced by the prosecution whereunder the entire proceedings commencing from the recording of the voluntary disclosure made by the accused till the completion of the mahazars leave no manner of doubt that the recoveries are validly effected pursuant to the voluntary statement made by the accused. Therefore, the objection raised by the learned counsel touching the proof and 47 admissibility of the recovery evidence relied on by the prosecution is liable to be rejected.
21. The objection regarding the admissibility of the C.Ds., without production of the certificate under section 65 of the Evidence Act is also without any legal substance. The records indicate that the C.Ds., were played in the open court and no objection appears to have been taken while marking these C.Ds. in evidence. The Hon'ble Supreme court has reiterated the legal position in SONU @ AMAR vs. STATE OF HARYANA (2017) SCC ONLINE SC 765 that if the objection as to the mode or method of proof is not taken at the trial, same cannot be permitted at the appellate stage. In para 32 of the Judgment, the Hon'ble Supreme Court has held as under:-
"32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or 48 method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned 49 Senior Counsel for the State referred to statements under Section 161 of the Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof."
(underlining supplied)
22. Thus, on overall consideration of the above facts and circumstances, we are of the considered view that the prosecution has conclusively established that on the date of the incident, the accused accompanied the deceased to the school. It is proved in evidence that from the school, the accused took her in the bus and both of them were seen together going towards the spot of incident immediately preceding the incident. It is further proved that in the evening on the same day, the accused pledged the gold ornaments and the same were 50 recovered at the instance of the accused. After the arrest, the accused himself showed the spot of occurrence thereby establishing his knowledge about the spot of occurrence. The weapon used for causing the death is also recovered at the instance of the accused. These circumstances, in our opinion, form a complete chain of circumstances which unerringly point out to the guilt of the accused establishing the ingredients of the offences under section 366A, 302 and section 201 of Indian Penal Code. On re-appreciating the entire evidence and re-consideration of the material on record, we do not find any error or infirmity in the findings recorded by the Trial Court holding the accused guilty of the above offences. Though the Trial Court has not discussed the evidence and has not assigned any reasons in support of the conclusions arrived at, nevertheless solely on that ground, the impugned judgment and the findings recorded by the Trial Court in proof of the guilt of the accused for the above offences cannot be faulted with. Even though the learned Amicus Curiae has taken serious objection to the manner in which the Trial Court has recorded the finding without considering the evidence adduced by the prosecution, 51 yet while dealing with the appeal, this court being the court of appeal is well empowered to re-appreciate the evidence and to arrive at its own conclusions. It would have been certainly desirable or rather incumbent on the Trial Court to deal with the matter with more seriousness and sensitivity especially when the court was dealing with the right and liberty of a citizen. More so, when the court had found it necessary to impose the extreme penalty of death sentence, in our view, the Trial Court ought to have exercised much more care and circumspection in deciding the issues before it. Unfortunately, the impugned judgment reveals that the learned Trial Judge has not even bothered to refer to the evidence of the witnesses, leave aside discussing and analyzing them in determining the guilt of the accused. However, to avoid any prejudice being caused to the accused on account of this lapse on the part of the learned Trial Judge, we have considered the entire material on record meticulously and have come to the very same conclusion which the learned Trial Judge has recorded.
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23. For the reasons discussed above, we therefore concur with the findings recorded by the learned Trial Judge and hold that the prosecution has successfully brought home the guilt of the accused for the offences punishable under sections 366A, 302 and 201 of Indian Penal Code.
24. In so far as the charge under section 376 of Indian Penal Code is concerned, we have not been able to find any material evidence on record to sustain the said charge. None of the witnesses examined by the prosecution have narrated any circumstance leading to the inference that the deceased was subjected to sexual intercourse prior to her murder. Even the medical evidence relied on by the prosecution does not support the view that the deceased was a victim of sexual assault. In this regard, it is significant to note that at the time of conducting the autopsy, PW.24 had collected the vaginal smear and vaginal swab with hair and the same were forwarded to F.S.L. for chemical analysis. The F.S.L. report is marked in evidence as Ex.P.28 wherein it is specifically mentioned that spermatozoa were not detected in the vaginal swab. That apart, PW.24 has 53 specifically mentioned in his evidence that the evidence of recent sexual intercourse could not be made out. Other than the evidence of PW.24, there is no other material available on record to indicate that the deceased was subjected to rape or sexual intercourse. In the absence of any evidence in proof of the ingredients of section 376 of Indian Penal Code, it was preposterous on the part of the Trial Court to hold the accused guilty of the offence under section 376 of Indian Penal Code. The Trial Court appears to have recorded this finding solely on the basis of the photographs of the deceased. We fail to understand as to how these photographs could establish the incident of rape and the author of the said crime in the absence of any further evidence in proof thereof. Therefore, the finding recorded by the Trial Court on this charge is not based on any legal evidence and has turned out to be perverse and illegal and therefore cannot be sustained in law. To this extent, the conviction of the accused under section 376 of Indian Penal Code is liable to be set-aside.
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25. Insofar as the award of death sentence is concerned, the impugned judgment reveals that the Fast Track Court found it appropriate to impose the death penalty in view of its finding that the accused committed rape on the deceased and after committing the murder, spilled acid on her face with intent to cause disappearance of the evidence, but on re-appreciation of the evidence, we have come to the conclusion that the prosecution has failed to prove either the rape or sprinkling of acid on the dead body as projected by the prosecution. The prosecution has also failed to establish that the throat of the deceased was slit by using the razor. As such, the perversity and the brutality which was considered as one of the factor by the Trial Court justifying the award of death sentence has remained unsubstantiated. The evidence adduced by the prosecution leads to the conclusion that the accused committed the murder of the deceased by dropping the stone boulder and thereafter pledged her gold ornaments. These circumstances by themselves, in our view, do not bring the case within the category of rarest of rare cases warranting death sentence. 55
26. The Hon'ble Supreme Court in the Constitution Bench judgment in BACHAN SINGH & Another vs. STATE OF PUNJAB, (1980) 2 SCC 684 as well as in the subsequent judgment in the case of MACHHI SINGH vs. STATE OF PUNJAB, (1983) 3 SCC 470, has laid down the guidelines and parameters in treating the cases as rarest of rare cases. We do not find that any of the parameters laid down therein get attracted to the facts and circumstances of the present case.
27. No doubt, the offence has been committed against an innocent girl who was a close relative of the accused who reposed confidence in him and meekly followed him. But, having regard to the overall facts and circumstances of the case and the manner in which the offence has been committed, in our view, the death sentence is harsh and excessive and grossly disproportionate to the offence committed by the accused. We do not find any circumstance in the entire material to suggest that the accused is either a menace to the society or is beyond reformation. Therefore, we are of the view that imprisonment for life would be the just and adequate punishment for the 56 offence committed by the accused. To this extent, the appeal deserves to be allowed. Hence, we proceed to pass the following:-
ORDER Criminal Appeal No.364 of 2013 filed by the accused is allowed in part.
The conviction of the appellant - accused for the offence punishable under Section 376 of Indian Penal Code is set aside. The conviction of the appellant - accused for the offences punishable under Sections 366A, 302 and 201 of Indian Penal Code is confirmed. The death sentence awarded by the court below is set aside.
The appellant - accused is sentenced to imprisonment for life and a fine of Rs.1,00,000/- for the offence punishable under Section 302 of Indian Penal Code. In default to pay fine amount, he shall undergo Rigorous Imprisonment for a further period of three years.57
On deposit and recovery of fine amount, the same shall be made over to PW.1 or PW.3 by way of compensation.
For the offence punishable under Section 366A of Indian Penal Code, the appellant - accused is sentenced to Rigorous Imprisonment for five years and to pay a fine of Rs.10,000/-. In default to pay the fine amount, the appellant - accused shall undergo Rigorous Imprisonment for one year.
For the offence punishable under Section 201 of Indian Penal Code, the appellant - accused is sentenced to Rigorous Imprisonment for two years and to pay a fine of Rs.10,000/-. In default to pay the fine amount, the appellant - accused shall undergo Rigorous Imprisonment for six months.
The substantive sentence of imprisonment shall run concurrently.
The appellant - accused is entitled for the benefit of set-off as per section 428 of the Code of Criminal Procedure.
In view of the above order, Criminal Referred case No.19 of 2010 stands rejected.58
We place on record the valuable assistance rendered by Sri.Pavan Sagar, learned Amicus Curiae. Even though short time was granted to him, learned Amicus Curiae has efficiently presented the case in defence of the appellant - accused. We direct the Registry to pay a sum of Rs.15,000/- to Sri Pavan Sagar for the valuable assistance rendered by him to the Court.
Sd/- Sd/-
JUDGE JUDGE
MN/Bss.NG.