Karnataka High Court
The State Of Karnataka vs Ramappa S/O Hanamantappa Waddar on 27 September, 2023
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NC: 2023:KHC-D:11523-DB
CRL.A No. 100500 of 2022
C/W CRL.RC No. 100002 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH R
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100500 OF 2022 (C-)
C/W
CRIMINAL REFERRED CASE NO. 100002 OF 2022
IN CRL.A.NO.100500/2022
BETWEEN:
RAMAPPA S/O. HANAMANTAPPA WADDAR,
AGE: 35 YEARS, OCC: MASON,
R/O. JAMBALADINNI VILLAGE,
TQ: HUNUGUND, DIST: BAGALKOT-587101.
...APPELLANT
(BY SRI. J. BASAVARAJ, ADVOCATE)
SAMREEN
AYUB
DESHNUR AND:
Digitally signed by
SAMREEN AYUB
DESHNUR THE STATE OF KARNATAKA,
Date: 2023.09.30
13:37:58 +0530 REPRESENTED BY ITS,
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD-580001.
...RESPONDENT
(BY SRI. M. B. GUNDWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C,
SEEKING TO CALL FOR RECORDS IN SESSIONS CASE
NO.85/2016 ON THE FILE OF II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BAGALKOTE PERUSE THE SAME, ALLOW
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NC: 2023:KHC-D:11523-DB
CRL.A No. 100500 of 2022
C/W CRL.RC No. 100002 of 2022
THIS APPEAL AND SET ASIDE THE ORDER OF CONVICTION
DATED 14.09.2022 AND DEATH SENTENCE DATED 16.09.2022
AND SET ASIDE THE APPELLANT/ACCUSED AT LIBERTY FOR
THE OFFENCE U/S 302 OF IPC.
IN CRL.R.C. NO.100002/2022
BETWEEN:
THE STATE OF KARNATAKA,
REPRESENTED BY ITS,
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD-580001.
...APPELLANT
(BY SRI. M. B. GUNDWADE, ADDL. SPP)
AND:
RAMAPPA S/O. HANAMANTAPPA WADDAR,
AGE: 35 YEARS, OCC: MASON,
R/O. JAMBALADINNI VILLAGE,
TQ: HUNUGUND, DIST: BAGALKOT-587101.
...RESPONDENT
(BY SRI. J. BASAVARAJ, ADVOCATE)
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366 OF CR.P.C FOR
CONFIRMATION OF DEATH SENTENCE AWARDED TO ACCUSED
RAMAPPA S/O. HANAMANTAPPA WADDAR, R/O. JAMBALADINNI
VILLAGE, TQ. HUNGUND DIST, BAGALKOT. THE ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BAGALKOT, HAS PASSED
JUDGMENT OF CONVICTION DATED 14.09.2022 IN
S.C.NO.85/2016.
THIS CRIMINAL APPEAL AND CRIMINAL REFERENCE
CASE, COMING ON FOR FINAL HEARING ON 23.08.2023 AND
THE SAME HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY RAMACHANDRA
D. HUDDAR J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:11523-DB
CRL.A No. 100500 of 2022
C/W CRL.RC No. 100002 of 2022
JUDGMENT
The appellant in the above appeal was prosecuted in SC No.85/2016 for the offence punishable under Sec.302 of Indian Penal Code ('IPC' for short).
2. The learned II Additional District & Sessions Judge, Bagalkote, as per his judgment dated 14.09.2022 convicted and sentenced the appellant for the offence of murder of a victim (his wife) to death and fine of Rs.1,00,000/- for the offence punishable under Sec.302 of IPC.
3. As accused was sentenced to capital punishment i.e., death sentence, the learned Sessions Judge, submitted reference to this Court for the purpose of confirmation as per the provisions of Sec.366 of Cr.P.C. However, accused who was sentenced to capital punishment has filed the appeal challenging the order of conviction and sentence recorded against him by the trial Court. Accordingly, appeal preferred by the accused and the reference submitted by the Sessions Judge, have been -4- NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 heard by us together and are being disposed of by this common judgment.
4. The facts leading to the aforesaid conviction and sentence of the accused are as follows:
5. For convenience, parties to these cases are referred to as per their rank before the trial Court.
Facts of the case
6. Father of the victim examined as PW.1 by name Krishnappa Timmanna Waddar lodged a complaint before Ilkal Police Station on 13.06.2016 alleging, that his daughter Jeejabai was married with accused r/o Jambaladinni Village, Hungund Taluk, Bagalkot District, about four years back prior to filing of the complaint. In that wedlock, a male child was born by name Prabhas aged 3 years. In his house, himself, his wife and other children by name Durgamma, Bheemavva, Ramachandra, Sonakka, Gnanesh and Anjaneya are residing. Laxmavva is also married and residing in her matrimonial home. -5-
NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022
7. It is stated by the complainant that, about one month prior to the filing of the complaint, his daughter Jeejabai delivered a child at Kathari Hospital, Ilakal. But the baby died. Since then his daughter was residing in his house and was under rest. Whenever accused i.e., her husband visited the house of the complainant, he used to force the victim to have sexual intercourse with him. This fact was intimated by his daughter to her mother.
8. It is alleged by the complainant that, about 2-3 days prior to filing of the complaint accused came to his house. Everyday complainant used to attend his meson profession at about 9 a.m. in the morning. As usual on 13.06.2016, he went to attend his profession. At about 12.30 p.m. his daughter Durgamma called him on telephone and stated that her sister Jeejabai was found crying in the toilet situated in the 1st floor. She told that when she went to the toilet room on hearing the cries of her sister, she noticed that, her husband Ramappa i.e., accused came in front of her and pushed Durgamma and -6- NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 ran away from the house. When she went and saw Jeejabai, she found that her sister had fallen down in a toilet room and there was extensive bleeding from her private part. Immediately, she was shifted to Kathari Hospital, Ilakal. But on the way to hospital she breathed her last.
9. On hearing this shocking news, the complainant rushed to Kathari Hospital and saw the dead body of his daughter. There was profuse bleeding from her private part and her entire inner garment was wet with blood and flesh from her private part had come out. It is alleged that, when there was a force by the accused to his wife to have sexual intercourse with him and when she refused, as she was under rest, being enraged by her refusal, assaulted her on her private part and killed her. The said incident had taken place at 12.00 noon on that day.
10. With these allegations, he lodged the complaint before PW.11, the then PSI of Ilakal Police Station, which was registered in Cr.No.111/2016. The said complaint -7- NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 was marked as Ex.P.1. Based upon that, FIR was registered as Ex.P.20 and criminal law was set in motion.
11. The Investigation Officer after following all the formalities of investigation filed Charge Sheet against the accused for the offence punishable under Sec. 302 of IPC.
12. The accused was arrested by the Investigating Officer on 14.06.2016 and since then, he is in judicial custody.
13. Before the learned trial Court, to prove the guilt of the accused, prosecution in all, examined 11 witnesses and got marked Exs.P.1 to P.20 with respective signatures thereon, and MOs. No.1 to 5. During the course of cross- examination Exs.D.1 and D2 are marked.
14. Having heard the arguments of both the side and on perusal of the evidence, the learned trial Court found the accused guilty for the offence punishable under Sec. 302 of IPC and sentenced to death and pay a fine of Rs.1 lakh with default sentence. This is how the appellant -8- NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 is before this Court challenging the said judgment of conviction and sentence and the State is before this Court seeking confirmation of death sentence.
15. It is submitted by the counsel for the accused/ appellant that, a false case is foisted against accused. He submits that, in view of the evidence adduced by the prosecution, there are more contradictions, omissions and discrepancies in the evidence of the prosecution. He further submits that, the facts of this case and the nature of the offence so alleged against accused never come under the purview of the rarest of rare cases. Therefore, the death sentence so imposed by the trial Court is liable to be set aside. He took us to the provisions of Sec.300, 302 of IPC and submits that, if at all, the conviction so passed by the trial Court is to be confirmed, then a lenient view may be taken by modifying the sentence. He also pointed out certain contradictions and omissions, in the evidence of the prosecution witnesses. -9-
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16. As against this submission, the learned Addl. SPP submits that accused is none else than the husband of the deceased. Though his wife had delivered a child and there was death of a child and she was under bed rest, this accused forced her to have sexual intercourse with her. She lost a child about one month back. But this accused wanted to satisfy his lust. When there was denial of such a demand by the deceased, he quarrelled with her and when she went to the toilet to attend nature's call, he took a wooden stick and pierced in the private part of the deceased. Because of this, there was a extensive bleeding from her private part and even flesh had come out. On hearing the hue and cry of the deceased, her sister Durgamma rushed to the upstairs. At that time, accused ran away by pushing her. When deceased was taken to hospital, after examination, the doctor informed that she was brought dead. Such a brutal act of murder of deceased was committed by the accused. In an offence of present nature, he submits that the severe capital punishment is only option which is imposed by the trial
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 Court. This sentence of capital punishment so imposed shall not be interfered by this Court. In support of his submission, he relies upon various evidence both oral and documentary.
17. We have given our anxious consideration to the arguments of both the side. Perused the records.
18. In view of the rival submission of both the side the following points arise for our consideration:
1) Whether the learned trial Court has committed error in finding the accused guilty for the offence under Section 302 of IPC and awarding Capital punishment to the accused is erroneous?
2) If so, whether the judgment of trial court requires interference by this court?
3) What order?
Points Nos.1 and 2 are discussed together:
19. So far as relationship between accused and deceased as husband and wife is concerned, it is not in dispute. In the wedlock between them, one child was born
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 who was aged three years at the time of incident is admitted. So also it is admitted that, deceased was under
bed rest in the house of her parents after death of her second child. It is also not in serious dispute that, accused often used to visit his wife (deceased) and used to force her to have sexual intercourse with him. It is not in dispute that, on 13.06.2016 accused had been to Ilkal town and visited the house of the complainant.
20. It is the case of prosecution that, when the accused wife was taking rest at Ilakal town in her parents' house, on 13.06.2016, accused came to the house of PW.1 his in-law and forced his wife to have a sexual intercourse with him. His wife was not ready as she was under bed rest. At about 12 p.m. on that day, when deceased was in the toilet, once again accused forced her to have a sexual intercourse with him, when she refused, accused got irritated and kicked her on her stomach. He took M.O.No.1 wooden stick and pierced in her private part. Because of this forceable piercing of M.O.No.1 in her
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 private part, it started bleeding. She was taken to hospital but doctor declared her brought dead.
21. Thus, it is the allegation that with a clear intention to cause murder accused has pierced M.O.No.1 in the private part of the deceased and caused her murder.
22. So far as sufferance of homicidal death of deceased, prosecution relied upon the evidence of inquest panchas. The Tahasildar conducted the inquest panchanama as per Ex.P.4. The other witnesses also have spoken about homicidal death of deceased apart from contents of Ex.P.4. The post mortem report Ex.P.13 prepared by PW.9, Dr. Vijay @ Dadesaheb Mohiddin Kuntoji proves the homicidal death of deceased. It is the opinion of the doctor that, deceased died due to shock as a result of internal injuries sustained to genital and intra abdominal area. In clear terms, doctor has stated that, by having the forceable sexual intercourse such injuries are not possible as shown in Ex.P.13.
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23. Thus, on reading Exs.P.13 to P.15, as rightly concluded by the trial Court, the death of the deceased was homicidal. Even on re-appreciating the evidence, homicidal death of the deceased is proved by the prosecution.
24. So far as evidence of PW.1-father of deceased, Krishnappa Waddar is concerned, he speaks in line with the contents of Ex.P.1. On getting information about assault on his daughter, he rushed to the hospital and noticed the dead body of the deceased. He noticed bleeding injury on her stomach and her genital area. He states that, always there was force by the accused to his deceased daughter to have sexual intercourse with him. As she refused, he caused the murder of his daughter. Therefore, he submitted a complaint to the Police Station as per Ex.P.1.
25. PW-2 Laxmawwa Waddar has deposed that Tahsildar called her to the Ilkal Government Hospital about 3½ years back prior to she giving evidence before the
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 Court and conducted inquest panchanama on the dead body of Jeeja Bai, the victim as per Ex.P.4 and photograph was taken as per Ex.P.5. She has been thoroughly cross- examined but she is consistent that she was a signatory to the inquest panchanama. There is no effective cross- examination to disbelieve her version with regard to her presence at the time of conducting inquest panchanama.
26. PW-3 Hanamanth Waddar and PW-4 Timmanna Waddar are the panchas to Ex.P.6. In their presence the Investigation Officer has conducted the scene of offence panchanama and recovered the article as per M.O.No.4. He also took a photograph as per Ex.P.3. To disbelieve their evidence with regard to conducting of scene of offence panchanama and seizure of M.O.4, no effective cross-examination is directed to them.
27. In this case, the star witness is PW.5 Durgamma Waddar. She has deposed that, after marriage of her sister with accused, in the year 2012, accused used to harass his wife. In the year 2016, when her sister
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 came to her parents house for second delivery, she lost her baby at the time of delivery in the Government hospital, Ilkal. Therefore, she was under bed rest in her parents house. Accused often used to visit her parents'' house and used to force his wife to have sexual intercourse with her. He was repeatedly forcing the deceased.
28. It is her evidence that, on 13.06.2016 at about 9.30 a.m. accused came to the house and took the deceased to the upstairs. At about 12.00 noon she heard the sound from the upstairs. When she went to the upstairs, accused was found running out of the toilet. She noticed that her sister was lying in the toilet and there was bleeding from her private part. It is her further evidence that, accused had pierced M.O.No.1 in the private part of deceased. Because of that, there was bleeding. Deceased was unable to speak. With the help of her brother, Vasu, deceased was taken to Kathari Hospital, but it was
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 informed to them that she was brought dead. She informed this fact to her father.
29. PW-6 Suresh Ilakal deposes that when panchanama Ex.P.7 was conducted by the Investigation Officer, he was present. The police took his signature on the said document and under Ex.P.7, M.O.2, the cloth worn by deceased were seized. He identifies M.O.1, the wooden piece used by the accused and it pertains to the bathroom door. He has been partly declared as hostile witness as he deposed ignorance about seizure of mangala sutra (wedlock). He too has been cross-examined both by the public prosecutor as well as defence. In the cross- examination conducted by the prosecution, he identifies the photographs marked as Ex.P.11 and Ex.P.12 snapped at the time of preparing Ex.P.8. He also identifies seizure of the mangala sutra as per M.O.4 and tablets as per M.O.5. No effective cross-examination is directed to him except the denial.
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30. PW.7 Mallavva Waddar being the mother of the deceased corroborates the evidence of this PW.5 in material particulars. Thus, form the evidence of these witnesses, it is very much clear that, the presence of the accused at the time of incident is proved. His presence at that time in the house of PW.1 is not denied by the accused. There is no concrete defence taken up by the accused except the denial. The other witnesses have spoken about their presence at the time of recovery of M.Os. at the instance of the accused.
31. PW-8 Giryappa Waddar has deposed before the Court about deceased residing in her father's house i.e., of PW-1. He also deposes about dying of a baby at the time of delivery of victim and she was under rest in her parents' house. He further deposed that, on 13.06.2016, at 12 noon, when he was crossing in front the house of PW-1, he heard the noise from PW-1's house. When he went inside the house, he noticed that the deceased Jeeja Bai had fallen down and there was bleeding from her private part.
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 Her sister and mother were there. He accompanied the said deceased to the hospital but on the way to the hospital, she died. He came to know that when there was refusal by the deceased to have sexual intercourse with her husband i.e., the accused, it was accused who assaulted her. Thereafter, he accompanied the complainant to the police station and lodged a complaint.
32. He too has been cross-examined at length by the defence. He has stated that Jambaladinni village is about 9 kms. from Ilkal. Accused came to the house of his wife in between 8 a.m. and 9 a.m. When he went inside the house, on hearing the noise there were 10 to 20 persons gathered there. He deposed ignorance that the people were talking there that because of slipping in the bathroom, deceased fell down. Except this suggestion, there is no effective cross-examination directed to PW-8 to disbelieve his version given in the examination-in-chief. The presence of accused between 8 a.m. and 9 a.m., in
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 the house of his wife has been spoken to by him which is not denied by the defence.
33. PW-9 Dr. Vijay @ Dadesaheb Kuntoji, was the doctor who conducted post mortem on the dead body of deceased Jeeja Bai in between 9.45 a.m. and 11 p.m. on 13.06.2016. He noticed the following two injuries:
i) Vaginal tear present extending towards cervical region bleeding present,
ii) Contused abrasion present over neck.
34. It is stated by him that, when he dissected her stomach, he noticed tearing of intestine and there was storage of 200 to 250 ml blood in her stomach. The said injuries were ante mortem. He was of the opinion that she died because of hemorrhage shock as a result of injuries on genital area and intra abdominal area. To that effect, he had issued Ex.P.13, the post mortem report. He also had issued his opinion on 07.09.2016 stating that because of forcible sexual intercourse such injuries are not possible. He also deposed that on examination of M.O.1,
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 he has given his opinion that the injuries so stated in the post mortem report may be possible by using M.O.1.
35. Though this doctor has been cross-examined but nothing worth is elicited so as to disbelieve his version given in examination-in-chief. It is his evidence that, when he saw the dead body he noticed commencing of rigor mortis.
36. PW-10 the Investigation Officer has conducted the panchanama as per Ex.P.6 in the presence of panchas stated supra and also took the photographs as stated above. He has narrated the nature of the investigation done by him. No effective cross-examination was directed to him.
37. PW-11 Mohammedrafiq Tahisldar was the Investigation Officer and he has registered the crime and prepared the FIR as per Ex.P.20 and set the criminal law in motion. There is no denial of registering the crime against the accused.
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38. When accused was examined under Section 313 of Cr.P.C, to all the incriminating evidence being put to him, were answered by the accused as false. Even he has not stated anything denying the brutal act committed by him to his wife.
39. In a criminal case, the onus lies on the prosecution to establish its case beyond reasonable doubt. The case of the prosecution cannot be said to be established merely because the defence is weak or false. The accused must be presumed to be innocent. The onus on the prosecution never shifts. Truth always suffers from infirmity when projected through human process. The prosecution need not arrive at conclusive proof. What is needed is proof beyond reasonable doubt.
40. In this case, it is PW.5, the immediate eye- witness has identified the accused running away from the house who was the assailant whom she knew before from the date of his marriage with her sister.
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 There is no cross-examination directed to her to show that, he was not present when the offence took place. Therefore, evidence of PW.5 cannot be discredited. Her evidence is trustworthy.
41. There are no glaring inconsistencies or there is no overwhelming evidence of any of the witnesses in this case. At the instance of the accused, certain recoveries have been made.
42. When accused has caused a stab injury on the vital part of the deceased i.e., her private part by causing injury by piercing the M.O.No.1, wooden stick, is it a case of murder, is to be ascertained. When accused pierced a wooden stick in the vital private part of the deceased, resulting her death, the said injury was sufficient in the ordinary course of nature to cause death and clause "thirdly" of Section 300 of IPC is attracted. The said clause reads as under:
Section 300:-
Firstly,.....
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 Secondly,....
Thirdly, - if it is done with a intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or ---
43. Thus, by applying the provisions of Section 300 of IPC, it is accused who assaulted the deceased with M.O.No.1 and pierced the said M.O.No.1 on her private part resulting in her death, and that injury was sufficient in the ordinary course of nature to cause death as doctor at Kathari hospital, Ilkal declared her brought dead.
44. The law says that, even a single injury entails death, then the offence is a murder. The prosecution must prove, firstly quiet objectively that, a bodily injury is present, secondly, the nature of the injury must be proved. Thirdly, it must be proved that there was an intention to inflict that, particularly bodily injury, that is to say that, it was not accidental or unintentional or that some other kind of injury was intended. Once these three
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution, the offence is murder under Section 300, thirdly (IPC).
45. The aforesaid four elements are present in this case.
46. The facts do demonstrate that there was persistent force by the accused to the deceased to have sexual intercourse with him. On the ill-fated day at about 9.30 a.m., he came to the house of his in-laws'' where his wife was under bed rest. He took her to the upstairs. He forced her to have sexual intercourse with him. When she was in the toilet, there also he forced her. When she refused, he took M.O.No.1 and pierced in her private part.
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 The prosecution evidence is detailed on the matter through various witnesses, especially of PW-5. Nothing could be elicited where from it could be said that her version was improbable or unreliable.
47. The FIR was lodged immediately by PW.1.
48. There is corroboration between both medical and oral evidence. There was no basis for defence suspicion to falsely implicate accused by the prosecution witnesses who are all natural witnesses at the time of incident. Hence, suspicion of defence cannot lead to discredit the version of the eye-witness of the crime. That means, there is clear and consistent evidence spoken to by the witnesses that the incident took place in the house of PW.1 in the upstairs where deceased was assaulted with M.O.No.1 on her private part. PW.5 has spoken about the presence of the accused. Thus, the evidence adduced by the prosecution could not be discarded.
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49. During the course of arguments, the learned counsel for the accused submits that because of material contradictions in the evidence of prosecution, the accused is entitled for benefit of doubt. He further submits that sentencing the accused to the death sentence deprives his right under the Indian Constitution and the facts of the case do not come under the purview of rarest of rare cases. Therefore, he submits that as the accused has no criminal antecedents and he is the first time offender, a lenient view may be taken while imposing the sentence. In support of his submission, he relies upon the following judgments:
i) SHAM ALIAS KISHORE BHASKARRAO MATKARI VS. STATE OF MAHARASHTRA1 ii) RAMANAND ALIAS NANDLAL BHARTI VS. STATE OF UTTAR PRADESH2 iii) RAJESH KUMAR VS. STATE THROUGH GOVERNMENT OF NCT OF DELHI3 1 (2011) 10 SCC 389 2 2022 SCC OnLine SC 1396 - 27 - NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022
50. As against this submission, the learned Addl. SPP submits that it is a pure case of ghastly murder and the facts so brought on record comes under the purview of the rarest of rare cases. In a brutal and merciless murder, taking undue advantage of the helpless woman, he has committed the offence. He has no remorse for his crime and his conduct shows that he is incapable of reformation and has become the menace to the Society. Therefore, there should not be any interference into the sentence imposed by the trial Court.
51. So far as the sentence is concerned, under Section 354(3) of Cr.P.C. , it is very much clear that in case of conviction, for offence punishable with death or alternatively, imprisonment for life, the life imprisonment is the rule while the capital punishment is an exception. That means, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of 3 (2011) 13 SCC 706
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 the crime, and 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. It is now well settled that where maximum punishment that could be awarded under the provision is, death penalty, the Courts are required to independently consider facts of each case and determine a sentence which is the most appropriate and proportional to the culpability of the accused.
52. The 'crime test', 'criminal test', and 'rarest of rare test' are certain tests evolved by the Hon'ble Apex Court. The tests basically examine whether the Society abhorse such crimes and whether such crimes shock the conscious of the Society and attract intense and extreme indignation of the community. Cases exhibiting premeditation and meticulous execution of the plan to murder by lebelling a calculative attack on the victim to annihilate him/her have been held to be fit cases for imposing death penalty. Where innocent married woman,
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 minor children, unarmed persons, helpless woman and old and infirm persons have been killed in a brutal manner by persons in dominating position, and where, after ghastly murder displayed deprived mentality, the accused are shown no remorse, death penalty has been imposed by the Hon'ble Apex Court in various judgments.
53. If it is established that, the accused is a harden criminal and has committed murder in a diabolic manner and it is felt that reformation and rehabilitation of such a person is impossible, and if let free, he would be menace to the Society, the Hon'ble Apex Court has not hesitated to confirm the death sentence.
54. Unfortunately, a woman in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been a victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status. Women also have right to life and liberty; they also have the right to be
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. Women, in them, have many personalities combined, they are:
mother, daughter, sister and wife and not mere play things to be exploited for obscene purposes. They must have the liberty, the freedom and of course independence to live, the roles assigned to them by nature so that the Society may flourish as they alone have the talent and capacity to shape the destiny and character of men anywhere and in every part of the world.
55. In this case, the accused has caused murder of his wife. The victim was under bed rest because of delivery of second child and also was under shock that she lost a baby at the time of delivery. At that time, this accused wanted to satisfy his lust and forced her to have sexual intercourse with him. It has come in the evidence that the accused was very often compelling his wife for sex.
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022
56. The story that victim Jeejabai was with the accused from morning till assault on her is confirmed by the evidence of PW-5, Durgamma and her mother, and also from the evidence of other witnesses. There is absolutely no cogent reasons to disbelieve the above evidence which has been rightly found trustworthy by the learned trial Court.
57. So far as the voluntary statement of accused before the Investigating Officer is concerned, certainly without any doubt, the substance of his evidence spoken to before the Investigating Officer about his guilt is proved. PW-5 being the eye-witness to the said incident of running away of the accused after committing assault on his wife is a circumstance which establishes a link in the chain of evidence which proves that it is accused and accused alone who committed the brutal act.
58. On reading the entire evidence so placed on record by the prosecution both oral and documentary, we
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 have found that there was no possibility of an outsider or any third person other than the accused coming to the house of PW-1. He has committed an assault on the person of his wife by piercing M.O.1, the wooden piece into her private part and caused her death. The presence of the accused at the place of offence and his conduct of running away from the said place was unusual on that day and gives a long way indicating his involvement in the offence in question. We have absolutely no doubt in our mind that the aforesaid facts establish chain of circumstances which point fingers only at the accused.
59. The learned trial Court has rightly assessed the evidence adduced by the prosecution and has rightly come to the conclusion that it is the accused who caused the murder of his wife. We do not find any illegality or infirmity or perversity in finding the accused guilty of committing murder of his wife by the accused. Therefore, we have absolutely no hesitation to confirm the conviction
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 of the accused for the offence punishable under Section 302 IPC.
60. With regard to the imposition of the sentence on the accused, in the alternative, the learned counsel for accused submits that accused was a young person of 31 years at the time of incident and is having a child which was of 3 years when the said incident took place. He is the first time offender. He has no criminal antecedents. The said offence has taken place because of frustration as there was refusal by the deceased to satisfy his biological desire. Therefore, it is submitted that a lenient view be taken in imposition of sentence.
61. We have scrupulously perused the judgments relied upon by the learned counsel for the accused.
62. The learned Addl. SPP submits that no lenient view be taken as it comes under the purview of rarest of rare cases. The judgments relied upon by the Addl. SPP are also perused.
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022
63. The decisions relied upon by both the sides speak with regard to the consideration of death penalty and powers of the Constitutional Courts to exercise the power of imposing a modified or fixed term sentence. Section 53 of the IPC speaks of sentence which shall be of a fixed period of more than 14 years, for example, 20 years, 30 years and so on. So far as sentencing policy being adopted in India mandates that the Courts can exercise the judicial discretion which is always guided by various considerations such as seriousness of the crime - the circumstances under which the crime was committed, the antecedents of the accused. It is laid down that, the Court is required to go by the principle of the proportionality. It is further laid down that if undue sympathy is shown by reducing the sentence to the minimum, it may adversely affect the faith of the people in efficacy of law. Therefore, we have to keep in mind all the circumstances and then impose a proper sentence.
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022
64. In view of all these factual features so narrated supra, the prosecution has proved the brutal act of the accused in the commission of the crime. In BACHAN SINGH VS. STATE OF PUNJAB4, the Constitution Bench of the Hon'ble Apex Court has laid down the categories of cases in which, the death penalty would be imposed and laid down the broad guidelines without attempting to formulate rigid standards as in that case, it would put fetters on the judicial discretion.
65. In a subsequent decision of the Hon'ble Apex Court in MACHHI SINGH VS. STATE OF PUNJAB5, it is laid down regarding type of cases which fall within the exceptional clause without introducing any type of cases which would fall within the exceptional clause without introducing any rigidity in order to avoid any attempt to fetter judicial discretion. The judgment cited by the learned Addl. SPP, no doubt pertains to a case where the offence of murder and rape were committed on helpless 4 (1980) 2 SCC 684 5 1991 Crl.LJ 439
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 girls, ladies and women, the severe punishment has to be imposed.
66. In a judgment of the Hon'ble Apex Court in RAJA RAM YADAV AND OTHERS VS. STATE OF BIHAR6, it is observed that the extreme penalty of death must be given only in the rarest of rare cases where the aggravating circumstances are such, the extreme penalty meets the ends of justice.
67. As stated supra, the conviction of the appellant has been based on the evidence of PW-5 who rushed to the scene of offence on hearing the sound of her sister. An innocent lady has lost her life as she refused to satisfy the lust of the accused. Though offence is a murder of a innocent lady, but in view of the facts and circumstances of the case, certain leniency has to be shown in sentencing the accused.
6 (1996) 9 SCC 287
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022
68. On application of the aforesaid principles laid down in the judgments to the facts of this case, this case is based upon the evidence of the witnesses who had seen the accused running away from the house after committing the assault on his wife. In a short length of time, the victim Jeejabai died on the way to the hospital. The evidence shows that she was murdered by the accused.
69. On reading the evidence brought on record, it shows that accused is having a child of 3 years at the time of incident. He is a labour by profession. He has no criminal antecedents. He is a first time offender. These are some of mitigating circumstances submitted by the counsel for the accused.
70. The facts so brought on record show that to satisfy his biological need/urge accused has forced his deceased wife to cohabit with him. As there was a refusal by the deceased as she was under rest, this accused with frustration might have committed this ghastly murder of
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 his wife. Such a murder would not come under the purview of rarest of rare cases but comes under the provisions of Section 300 of Cr.P.C. Therefore, in our considered view, the death sentence so imposed on the accused shall have to be modified and the minimum sentence prescribed under Section 302 of IPC have to be levied against accused. Therefore, the appeal so filed by the accused/appellant deserves to be allowed in part and Reference case is to be rejected.
71. Resultantly, we pass the following:
ORDER a. Appeal in Crl.A.No.100500/2022 filed by the appellant/accused is partly allowed, b. Reference case No.100002/2022 is rejected. c. Accused is convicted and sentenced to undergo rigorous imprisonment for life. The fine so imposed and the compensation awarded by the trial Court is maintained.
d. If the said fine is realized, the same should be
paid to the complainant - Krishnappa
Timmanna Waddar with a direction to keep the said amount in the name of the child of the
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NC: 2023:KHC-D:11523-DB CRL.A No. 100500 of 2022 C/W CRL.RC No. 100002 of 2022 victim who not only became an orphan, but also lost his mother.
e. The judgment dated 14.09.2022 passed by the II Addl. District and Sessions Judge, Bagalkote, in S.C.No.85/2016 is modified in the above terms, f. Accused is entitled for set off under Section 428 of Cr.P.C. of the period undergone by him during crime and trial stage. g. Order regarding disposal of properties is maintained, h. Intimate the final order to the trial Court forthwith, i. Trial court is directed to issue modified conviction warrant against accused to the concerned jail authorities.
Send back the trial Court records along with copy of the judgment forthwith.
Sd/-
JUDGE Sd/-
JUDGE JM/List No.: 1 Sl No.: 49