Karnataka High Court
State By Mundargi Police Station vs Kumar @ Arun Kumar S/O Ramappa Lamani on 23 August, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRL.A No. 100059 of 2020
c/w CRL.R.C. No.100001 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRL.A. NO.100059/2020
C/W CRL.RC. NO.100001/2020
IN CRL.A.NO.100059/2020:
BETWEEN:
KUMAR @ ARUNKUMAR S/O RAMAPPA LAMANI
AGE: 32 YEARS, OCC: COOLIE,
R/O: HAMMIGI THANDA, TQ: MUNDARGI,
DIST: GADAG.
...APPELLANT
(BY SRI.SHARNAPPA S. KOLIWAD, ADV.)
AND:
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD,
THROUGH MUNDARGI POLICE STATION.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO SECURE THE RECORDS OF THE CASE BEARING
SC NO.68/2016, FROM PRINCIPAL DISTRICT AND SESSIONS JUDGE,
GADAG AND TO ALLOW THE APPEAL AND BY SETTING ASIDE THE
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CRL.A No. 100059 of 2020
c/w CRL.R.C. No.100001 of 2020
JUDGMENT OF CONVICTION DATED 29.11.2019 AND ORDER OF
SENTENCE DATED 04/12/2019 PASSED IN S.C. NO.68/2016, BY
PRINCIPAL DISTRICT AND SESSIONS JUDGE, GADAG AND TO
ACQUIT THE APPELLANT/ACCUSED PERSONS FROM THE ALLEGED
OFFENCES UNDER SECTION 302 OF INDIAN PENAL CODE.
IN CRL.R.C. NO.100001/2020:
BETWEEN:
STATE
BY MUNDARGI POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD BENCH,
DHARWAD.
...COMPLAINANT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
AND:
KUMAR @ ARUN KUMAR S/O. RAMAPPA LAMANI,
AGE: 28 YEARS, OCC. COOLIE,
R/O. HAMMIGI THANDA, TQ. MUNDARGI,
DIST. GADAG.
...RESPONDENT
(BY SRI. SHARANAPPA S. KOLIWAD, ADV.)
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366OF CR.P.C. FOR CONFIRMATION OF DEATH
SENTENCE AWARDED TO THE ACCUSED KUMAR @ ARUNKUMAR S/O.
RAMAPPA LAMANI, AGE: 28 YEARS, OCC.COOLIE, R/O. HAMMIGI THANDA, TQ.
MUNDARGI, DIST. GADAG.
THIS CRL.A. AND CRL.R.C. COMING ON FOR HEARING ON
19.07.2022 AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, M.G.S.KAMAL J.,
DELIVERED THE FOLLOWING:
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CRL.A No. 100059 of 2020
c/w CRL.R.C. No.100001 of 2020
JUDGMENT
Criminal Appeal No.100059/2020 is filed by the accused aggrieved by the judgment and order dated 29.11.2019 passed in S.C. No.68/2016 on the file of the Principal District and Sessions Judge, Gadag (hereinafter referred to as 'trial Court') by which the accused-appellant has been convicted and sentenced to death penalty under Section 354(5) of Cr.P.C. for the offence punishable under Section 302 of IPC subject to confirmation by this Court under Section 366 of Cr.P.C.
2. Criminal R.C. No.100001/2020 has been referred seeking confirmation of the aforesaid judgment and order of conviction and sentence of death penalty.
3. Brief facts of the case of the prosecution is that accused Kumar @ Arun Kumar was married to one Manjula from Shivapura Thanda about three years prior to the incident and both of them were working in a Coffee Estate near Banakal. At that time, complainant-Sri.Hanamant Naik-PW4, his wife and their daughter Devi were also working in the said coffee estate. Accused became close to Devi-the daughter of the complainant -4- CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 and married her even while his first wife Manjula was alive. Out of the said marriage, Devi gave birth to two daughters. The accused thereafter with an intention of marrying for the third time, decided to kill his second wife Devi and the her two daughters. In pursuant thereof on 28.03.2016 he purchased pesticides from the shop of PW12 and PW13. He took Devi and two daughters to the land bearing Sy. No.389 of Hammigi Village belonging to aforesaid PW10 where the parents of the accused were working. On 29.03.2016 between 02:00 a.m. and 03:00 a.m. he administered poisonous pesticides to his wife Devi and the two daughters and murdered them and he also pretended to have consumed the poison himself.
4. Based on the complaint of PW4, FIR was registered, investigation was conducted, charge sheet was filed against the accused for the offence punishable under Sections 302 of IPC. The prosecution in support of its case examined 27 witnesses as PW1 to PW27 and exhibited 41 documents marked as Exs.P1 to P41 and 11 material objects marked as MO1 to MO11 and closed its side. On recording of the statement of the accused under Section 313 of Cr.P.C., the accused denied the incriminating -5- CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 evidence against him but did not lead any evidence in his defence. The trial Court by the impugned judgment and order convicted the accused and sentenced him with death penalty for the offence under Section 302 of IPC.
Submission of the counsel for the appellant:
5. Sri.S.S.Koliwad, learned counsel appearing for the appellant-accused reiterating the grounds urged in the memorandum of appeal submitted that there is no direct evidence and the entire case of the prosecution is based on circumstantial evidence. That the prosecution has failed to prove beyond reasonable doubt, the allegation of forcible administration of poisonous material by the accused to deceased Devi and two children. There is also no material evidence to establish the manner of administration of the said poisonous pesticide. That the postmortem report does not show any sign or symptoms of forcible administration of the poisonous pesticide to the victims. That the Investigation Officer-PW24 has admitted regarding he not obtaining any opinion in respect of material objects MO2 to MO4 namely a bottle, plastic measuring scale, a steel mug purportedly used to commit the crime. The -6- CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 evidence of PW2-Heera Naik and PW3-Mallesh, PW4-Hanumant with regard to the spot mahazar is not clear satisfying the standard of proof required for the offence punishable under Section 302 of IPC. The allegation of accused administering the poison to the children cannot be accepted as deceased Devi @ Devakka would have protested while administering the poison to the children. Similarly there is no evidence on record to rule out the possibility of said deceased Devi herself administering the poison to the children. In the absence of clarity, on this aspect of the matter, no guilt can be attributed to the accused more particularly when he himself found to have consumed the pesticide and was treated as inpatient between 29.03.2016 to 04.04.2016. The accused and the deceased Devi were loving each other and there is nothing on record to suggest any enmity between them. Evidence of PW12, PW13 who allegedly sold the pesticide to the accused cannot be relied upon. The finding of the trial Court with regard to the present case coming with the purview of rarest case warranting award of death penalty is unjustified. Hence, sought for allowing of the appeal. -7- CRL.A No. 100059 of 2020
c/w CRL.R.C. No.100001 of 2020 Submissions of the learned Additional State Public Prosecutor:
6. Sri.V.M.Banakar, learned Additional State Public Prosecutor justifying the judgment and order impugned submitted that from the material evidence available on record and under the facts and circumstances of the matter, the only inference that can be drawn is that the accused alone responsible for the death of deceased Devi and two minor children and there are no other possibilities of anyone else committing the offence. Hence, he submitted the appellant has not made out any grounds warranting interference with the impugned judgment and order. Hence sought for dismissal of the appeal.
7. Heard the learned counsel for the parties. Perused the records. The points that arise for our consideration is:
"Whether on the facts and in the circumstances, the trial Court is justified in convicting the accused of the offence punishable under Section 302 of IPC and whether the case falls under the category of rarest and rare case justifying sentence and death penalty?"-8- CRL.A No. 100059 of 2020
c/w CRL.R.C. No.100001 of 2020 ANALYSIS Cause of death:
8. PW19-Dr.Keerthihas H.P., in his deposition has stated that he received the dead bodies of Devi and of two female babies aged two years and three months respectively and conducted postmortem of those three bodies on 29.03.2016 between 06:40 p.m. to 08:00 p.m., 08:15 p.m. to 09:15 p.m. and 09:30 to 10:30 p.m. respectively. In his deposition he has given the details of external appearance of the aforesaid three dead bodies and has opined that the cause of death of the three was due to organo phosphorus insecticide poison. The postmortem reports are marked at Exs.P27 to P29 and final reports are marked at Exs.P30 to P32 and the Forensic Science Laboratory report is at Ex.P33.
9. Further, the said witness has also deposed that the accused Kumar Lamani was brought at 10:50 a.m. of 29.03.2016 with the alleged history of consumption of pesticide.
That based on the clinical examination, accused was provisionally diagonalized with organo phosphorous compound poisoning and was treated immediately for the same. He was -9- CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 thereafter referred to District Hospital, Gadag for further evaluation and management. A report in this regard is produced at Ex.P34. Nothing has been elicited from this witness in the cross-examination to discredit his evidence.
10. Inquest mahazars are at Exs.P4, P5 and P18, PW1- Kalibai and PW2-Heera Naik are the witnesses to the inquest mahazars-Ex.P4 and P5 on the dead bodies of Devi and Chinnu which was conducted at the scene of offence. They have spoken about the condition of the dead body of Devi and of the two children. They have also spoken about the smell of the pesticide emanating from the mouths and also with regard to presence of mug, cup and a stick at the scene of offence. PW2 has spoken about two chits found near the scene of offence regarding purchase of the pesticide. He has also spoken about Police seizing seven articles and taking them into their custody. The articles are marked at MO1 to MO5 and two bills of pesticide as Exs.P9 and P10. The mahazar is at Exs.P4 and P5.
11. PW5 is relative of PW4 and a witness to the inquest panchanama at Ex.P18 conducted on dead body of three months old baby girl at the land of Gunjal. He has spoken about
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 location and situation of the dead bodies. He has also spoken about the material objects at MO1 to MO5 found at the spot. In the cross-examination, nothing has been elicited to discredit the evidence of the said witness.
12. From the above evidence of PW19 and from the contents of postmortem report and the final opinion and also from the evidence of PW.1, 2 and 5 and from the contents of inquest panchanama at Exs.P4, P5 and P.18, it is clear that deceased Devi and the two children died of the poison, thereby establishing the case of the prosecution of unnatural death of the deceased Devi and two children amounting to homicidal death.
13. Though the accused was also treated by PW19 initially for alleged consumption of pesticide, the question that arises for consideration is who caused the death of Devi and two children and what was the reason for the accused to consume the pesticide. In this regard, the prosecution has examined the witnesses to establish motive circumstances, preparation and the conduct of the accused pointing to the guilt of commission of offence by the accused.
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 Regarding motive circumstances:
14. PW4-Hanumantha, the complainant and father of deceased Devi and grandfather of the minor children, in his evidence reiterating the complaint averments has stated that he along with his family had been to Banakal coffee estate to work as coolie. At that time, accused and his people had also come to the said estate. The accused despite being married to PW9 had eloped with his daughter deceased Devi. That he searched for his daughter but after two months, accused came back having married deceased Devi. As such they were allowed to lead their married life. Two daughters were born. Accused alongwith Devi and children went to his elder brother's-PW16 place at Kakkur Thanda, from there he went to his parents who were working in the land of PW10. At 09:00 a.m., on the date of the incident, he received a call from his son Kumar asking him to come urgently to Hammigi Village as the accused had killed his daughter Devi and her children by administering poison to them. He found the accused in alcoholic condition on a road with pesticide sprinkled on his body and pretending to have consumed the same. He found the dead bodies of his daughter and her two children in front of a hut in the aforesaid land with froth in their mouth.
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 That there were about seven items namely two glasses, steel mug, a camphor bottle mixed with the poison, a chair, a measure scale and two receipts for having purchased the pesticides. He handed over the same to the Police. That the accused had killed his daughter Devi and her children with an intention of marrying again. He has identified the complaint given by him at Ex.P12. He has identified the photographs at Exs.P1, P2, P13 and P14 which were taken at the scene of offence. He has identified the aforesaid material objects at MO1 to MO11. The said witness was considered partly hostile and was cross-examined by the Public Prosecutor in which he has admitted that accused was arrested in the Police Station and confessed to have administered poison to deceased Devi and two children and killed them.
15. In the cross-examination by the defence, he has denied the suggestion that after their marriage, accused and deceased Devi, were harassed by him and the accused was asked to go and live with his first wife Manjula-PW9. He has also denied the suggestion that he as well as PW9-Manjula and her relatives had physically assaulted the accused and the deceased
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 Devi for their bigomous marriage. He has also denied the suggestion that deceased Devi had complained to the elders of the community regarding the harassment to which the elders had advised him and PW9-Manjula.
16. PW9-Manjula Lamani who is the first wife of the accused, has spoken about her marriage with the accused about four years ago and she living with accused in Hammigi Village and also working in the Coffee Estate near Banakal. That she lived happily with the accused for six months. Thereafter, accused started physically harassing her. That she has also spoken about accused marrying deceased Devi and after the birth of two children to Devi, accused had taken her back promising to take care of her. Accordingly, she went to the accused to the coffee estate where she gave birth to a daughter. But accused again continued to physically assault her. That thereafter she went to her parents house and did not return to join the accused. She learnt through TV news about accused killing the deceased Devi and two children by administering poison in the estate where her parents-in-law were working. She has stated that by the time she went to the spot, the cremation
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 of Devi and children was over. She does not know why he has killed them. She has identified the dead body of Devi and the children in the photographs. That she heard from the people about accused killing the deceased.
17. In the cross-examination, she has denied the suggestion of fighting with the accused and assaulting him for he marrying for the second time. She has denied having any personal enmity against the accused.
18. PW7-Bhamavva Lamani, mother of the accused has stated that she alongwith her husband were working in the land of PW10-Bhujabaleppa Gunjal. She has also deposed that her son was working in a coffee estate. She has pleaded ignorance about the facts of the present case. She was treated hostile and has not supported the case of the prosecution.
19. PW15-Shankarnaik has spoken about his acquaintance with the accused and the deceased. He has also spoken about he going along with the complainant PW4 to Hammigi Village to the fields of PW10-Bhujabaleppa Gunjal. He has stated that when he reached the spot, accused was already
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 taken to the hospital for treatment. He has identified the dead bodies of Devi and children in the photograph and also MO1 to MO4 found near the spot. Nothing has been elicited from this witness to discredit his evidence.
20. From the deposition of PW4, PW9 and PW15, it is clear that the accused had married the deceased Devi and had two daughters from her. It is also clear that the accused even after marrying, Devi still had relationship with his first wife PW9 to whom a girl child was born. That he continued to harass PW9 who went to her parents house. PW7-Smt.Bhamavva Lamani, mother of the accused has not supported the case of the prosecution for obvious reason of helping her son in the matter. That does not affect the case of the prosecution inasmuch as the other witnesses have spoken about the dead bodies having been found in the lands of PW10 and also about accused found to have consumed poison at the same place, where PW7 was admittedly working.
21. It is alleged that the accused with an intention of contracting marriage for the third time decided to eliminate deceased Devi and two daughters. In the facts situation of this
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 case, whether the prosecution has established or whether it is required to establish the motive circumstance, is dealt with in later part of this judgment.
Last scene theory:
22. PW16-Lalappa Lamani is the elder brother of the accused and son of CW11 and CW12. He has spoken about his parents working in the fields of pw10-Bhujabaleppa Gunjal. He has also spoken about accused, deceased and two children coming to Kukkur and visiting him and thereafter going to Hammigi to meet his parents. That on the next day at 08:00 a.m. he learnt about the death of Devi and children and he immediately went to the spot and found their dead bodies near the hut. That the accused had killed his wife and children by administering the children. That there were two bottles near the dead bodies. Accused was also present there. He had consumed poison and was not allowing anybody to come near him. Therefore, they called Police. The Police took the accused. that the accused killed Devi and children with an intention of marrying for the third time. In the cross-examination, said witness has pleaded ignorance about accused marrying the
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 deceased for the second time. He has also stated that he is not personally aware of the reason of death of Devi and children. That since the accused had absconded from the Hospital after three days, the Police had enquired him.
23. Nothing has been elicited from this witness disputing he seeing accused, deceased and the children a day prior to the incident.
Scene of the offence:
24. PW10-Bhujabaleppa Gunjal is the owner of the land where the incident had taken place. He has stated that PW4- Ramappa Lamani and PW7-Bhamavva Lamani are working in his field and guarding the crop, living in a hut in the said land. That he received a call on the day of the incident from one Sankar Naik, who was supervising the harvest of sugarcane crop. The said Shankar Naik had informed him that son of Ramappa Lamani was struggling having consumed the pesticide. That he reached the spot at 09:00 a.m. and found the accused struggling on the road by consuming the poison. He found dead bodies of Devi and her two children near the hut. He learnt that the accused had administered poison to them. That he along
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 with the villagers took the accused in a vehicle to Hammigi Primary Health Centre, from there the accused was sent to the Mundargi Government Hospital for further treatment. He identified the photographs and the pahani at Ex.P23 belonging to his land.
25. In the cross-examination, the said witness has stated that the accused had informed him in the Hospital at Hammigi, that he had killed his wife and children by administering poison to them. The effect of the poison had reduced in the Hospital and the accused gained complete consciousness and in the presence of nurse, when he enquired, he informed him that he wanted to die near his parents. Therefore, he consumed poisoned and administered poison to his wife and children. Nothing has been elicited to discredit the evidence of this witness.
26. From the evidence of PW10, the fact of parents of accused working in his field stands established. The accused going to his land with deceased Devi and children also stands established. Though the confession made by the accused to PW10 of he having administered the poison to his wife and
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 children has been disputed and the said extra judicial confession being unreliable, the fact of accused being found with he consuming the poison and the death of the deceased Devi and children in his land due to consumption of poison stands established.
Preparation:
27. The case of the prosecution is that the accused purchased the pesticide from the shop of PW12 and PW13 and administered the same to deceased Devi and two children and he also had consumed. In this regard, evidence of PW12 and PW13 needs to appreciated.
28. PW12-Devendragouda Ayyanagoudra is the owner of Mahantesh Agriculture Centre, seeds, fertilizers and pesticides shop at Ambabhavani Nagar, Mundargi. He has stated that on 28.03.2016 at about 01:30 p.m. accused had come to his shop and had purchased 'FAME Pesticide' stating that he required to spray to the vegetable crops in his field. That he sold 100 ml. of FAME Pesticide for Rs.180/- and had issued a receipt to the accused in his name. That he learnt from the TV news of
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 accused killing his wife and children. The receipt given by him is marked at Ex.P9.
29. PW13-Ramachandra Megalamani is the owner of M/s.Megalamani Argo Traders, seeds, fertilizers and pesticides shop at Ambabhavani Nagar, Mundargi. He has also stated that accused had purchased 100 grams of cherries, ML Saf of 100 grams under receipt dated 28.03.2016. The receipt is marked as Ex.P10.
30. PW12 and PW13 have withstood the test of cross- examination and nothing has been brought on record to discredit their evidence. Under the circumstances, prosecution has proved accused procuring the pesticides. Conduct of the accused:
31. The case of the prosecution is that the accused who was admitted as inpatient for the treatment due to he consuming the poison, had ran away from the hospital. In this regard, prosecution has examined PW25-Dr.Bheemanagouda Patil, Senior Specialist, Gadag District Hospital. The said witness has spoken about accused having been brought on 29.03.2016
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 to emergency section for he consuming poison. That after initial diagnosis, accused was admitted as inpatient. That the accused had consumed poison known as organo phosphorous. That the accused had absconded from the Hospital ward on 04.04.2016 and he had given information to the Police as per Ex.P41. In the cross-examination, the said witness has stated that the accused was brought by one Lalappa Ramappa Lamani. That he learnt about accused running away from the Hospital from a nurse. Nothing has been elicited to discredit the evidence of the said witness.
32. The Investigating Officer-PW24 in his evidence has stated that the accused had absconded from the hospital on 04.04.2016 and was arrested by his personnel at Hubballi new bus stand on 10.04.2016. No cross-examination has been done on behalf of the defence in this regard.
33. From the evidence of PW25 and PW24, it is clear that the accused had absconded from the hospital and was arrested on 10.04.2016 giving rise to indication of his involvement in the commission of crime.
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 Other witnesses:
34. PW6-Manjunath Hammigi is a witness to seizure panchanama at Ex.P11 under which the clothes of the deceased Devi and two children were seized and he identified the same. He is also a witness to the spot panchanama at Ex.P19. He has identified the photograph showing himself, accused and another person marked as Ex.P20. Nothing has been elicited to discredit the evidence of the said witness.
35. PW11 is H.D.Girish, the owner of the Coffee Estate, where the accused was working. He has identified the accused.
36. PW18 is the Police Constable who has spoken about taking dead body of deceased Devi to Mundargi Hospital and collecting the postmortem report at Ex.P26.
37. PW26 is the Head Constable who has spoken about carrying the dead body of chinnu for postmortem and receiving the postmortem report at Ex.P38.
38. PW14 is Prakash Lamani, the Police Constable who has deposed having taken the dead body of three months old
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 girl child after the inquest and collecting the postmortem report at Ex.P24.
39. PW17 is one Basavaraj Kumbar Police Constable who has spoken about obtaining FSL report as per Ex.P25.
40. PW20 is a Police Constable who has spoken about carrying the compliant and the FIR at Ex.P35 to the Magistrate.
41. PW21 is the Head Constable who has spoken about having gone to the spot and also about drawing up the inquest of the dead bodies and drawing up of the spot mahazar.
42. PW22 is the Lady PSI who has also spoken about going to the coffee estate and recording the statement PW11- H.D.Girish.
43. PW23 is ASI who has spoken about receiving the information about the death of deceased Devi and children and accused consuming the poison and on the instructions of Police Inspector, he and PW21 and going to the place of incident.
44. PW24 is the Investigating Officer who has spoken about conducting of the investigation, recording of statements,
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 drawing up of mahazars, seizing of articles, sending the dead bodies for postmortem, receiving the reports, receiving the intimation regarding absconding of the accused, arresting of the accused, recording of voluntary statement of the accused, accused showing the spot of commission of offence and after completion of investigation, filing of the charge sheet. In the cross-examination, the said witness has stated he has not obtained opinion of the expert with regard to MO2-bottle and MO4-steel mug.
45. PW27 has spoken about conducting the inquest of dead body of Devi as per Ex.P4 and recording the statement of the sister of the accused.
Conclusion:
46. From the reading of deposition of the aforesaid witnesses and on perusal of the records, it is clear that the accused Kumar had contracted second marriage with deceased Devi and had two daughters one aged two years and the other aged three months respectively. That the accused and Devi with their children had gone to the house of PW16 one day before the date of incident. Thereafter, they had gone to the lands of PW10
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 where the parents of the accused were working. That on the date of the incident, dead bodies of the deceased Devi and two children were found in front of the hut in the fields of PW10 and the accused was also found struggling having consumed the poison. Accused was admitted to the hospital for treatment as inpatient had ran away on 04.04.2016 and was arrested on 10.04.2016. From the medical evidence it is clear that deaths of Devi and children were due to consumption of poison which was procured by the accused from the shops of PW12 and PW13.
47. Accused has not given any explanation whatsoever either while recording the statement under Section 313 of Cr.P.C. or as required under Section 106 of the Evidence Act. It is also to be noted that no other possible theory has been suggested or propounded by the accused to connect the crime to any other person. There is no specific defence taken up by the accused except suggesting to PW4 and PW9 that they and their relatives had assaulted and harassed accused and deceased Devi for they contracting the second marriage. Thus giving rise to irresistible presumption of commission of offence by the accused.
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020
48. However, it is necessary to note that the consumption of poison by the accused is not in dispute. Though it is alleged by PW4 that the accused pretended to have consumed the poison to avoid any consequences, as he had administered the poison to Devi and two children and killed them as already noted, there is no direct evidence of accused administering the poison to the deceased. There is also no evidence on record as to the manner in which the poison has been administered to the deceased i.e., whether it was directly administered to them or through any indirect means. This circumstance give rise to following questions:
a. Whether the accused personally administered the poison to the deceased Devi and two children? or;
b. Whether deceased Devi voluntarily consumed the poison and or administered the same to the children?
49. Whatever be the answers to the aforesaid questions, definite facts under the circumstances which clearly emerge are that the accused being present at the scene of offence, at the time of the offence, if Devi administered poison
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 to children, as father, his expected conduct in the ordinary course is to intervene to protect the children. Neither he did that nor claims to have done that. Therefore, motive circumstances also stands proved.
50. In the circumstances, we are of the considered opinion that the prosecution has established the guilt of the accused for the offence punishable under Section 302 of IPC beyond reasonable doubt.
Regarding sentence of death penalty:
51. Having held as above, the question whether the above offence committed by the accused falls within the category of 'rarest of rare case'. The trial Court in its order on imposition of sentence, referring to the judgment of the Apex Court in the case of Bachan Singh vs. State of Punjab reported in 1980 (2) SCC 684 and also in the case of Machhi Singh vs. State of Punjab reported in AIR 1983 SC 957 and Suryakant Baburao Phad vs. State of Maharashtra and others reported in AIR 2019 SC 3629 has come to the conclusion that the present case falls under the 'rarest of rare
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 category' warranting imposition of death penalty on the accused.
52. Learned counsel for the appellant/accused submits that in the absence of any clarity with regard to accused administering of poison to the deceased and in the absence of any direct evidence with regard to the manner of such administration, it would not be safe to conclude that it was accused who had committed the crime while accused himself having consumed the poison giving rise to doubt in the case of the prosecution. Further, he submits the accused is just 34 years of age and has a widowed mother to take care. That the accused has no history of past conviction or other criminal antecedents. Therefore, he submits that imposition of death sentence to the accused would be disproportionate and result in complete miscarriage of justice.
53. Learned counsel submits that the accused has consciously and with a predetermined intention procured the poison from PW12 and PW13 and has administered the same to the deceased Devi and two children thereby caused death of his wife and tender aged children in a very ghastly manner. The act
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 of accused shocks the conscience of the Society. Having regard to the gravity of the offence and the way the same is executed death penalty imposed by the trial Court is justifiable and needs to be confirmed. In support of his submissions, he relies on the judgment of the Hon'ble Supreme Court in the case of Pappu vs. State of UP reported in 2022 SC online 176.
54. The Hon'ble Apex Court in the case of Pappu supra while dealing with the factors to be considered for imposition of death penalty at para 159 referring to its earlier judgments in the case of Bachan Singh and Machhi Singh has summed up aggravating and mitigating circumstances as under:
"159. In Shankar Kisanrao Khade (supra), after survey of a wide variety of cases and pointing out the requirement of applying 'crime test', 'criminal test' and 'rarest of rare test', this Court recounted, with reference to previous decisions, the aggravating circumstances (crime test) and the mitigating circumstances (criminal test) as follows: -
"49. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence: (Rajendra Pralhadrao case, SCC pp. 47-48, para 33) ''Aggravating circumstances -- (Crime test) (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence.
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances -- (Criminal test) (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 (2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.'
55. The present case requires to be examined in the light of the above guidelines, if it falls in the category of 'rarest of rare cases' and what are the 'aggravating and mitigating circumstances' in considering the imposition of punishment.
56. Considering the death of Devi, the second wife of the accused and two daughters aged two years and another aged three months and the cause of the death being the poison, it would fall within the aggravated circumstances as enlisted by
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 the Apex Court in the case of Pappu supra. However, as noticed above, the circumstances namely accused himself found to have consumed the poison and in the absence of any direct evidence of he administering the poison or with regard to manner of administering the poison, it may not be safe to conclude that the case would fall completely within the category of 'rarest of rare case'.
57. This Court by order dated 11.07.2022 had requested the learned Additional State Public Prosecutor to secure the report regarding the conduct of the accused in the prison. The learned Additional State Public Prosecutor by memo dated 12.07.2022 filed conduct certificate issued by Chief Superintendent, Central Prison, Belagavi who by certificate dated 12.07.2022 has certified that the accused who is detained in the central prison from 05.12.2019 till date has good moral character and his behavioral conduct has been good with co- prisoners and prison officials and no complaint was received about his behavioral conduct. Thereafter, by another order dated 13.07.2022, this Court had requested the learned Additional State Public Prosecutor to secure the report regarding
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 phychiatric evaluation of the accused to consider if there was a possibility of his reintegration in the society if the death sentence was commuted. Accordingly, learned Additional State Public Prosecutor filed a memo dated 18.07.2022 along with a report issued by Belagavi Institute of Medical Science, Belagavi regarding mental status examination. The said report reveals that general appearance and behaviour, speech, thought, mood and affect, perception and cognitive function of the deceased to be normal and there is no impression of any psychiatry.
58. Thus, the mitigating circumstances in favour of accused are the case is based on circumstantial evidence, his age, he having no history of past conviction and his good behavioural conduct during his detention in the prison all along and there being no complaint or report of any misconduct.
59. In the similar circumstances in paragraph 164 of the judgment in Pappu's case referred to supra the Hon'ble Supreme Court held as follows:
"164. It could readily be seen that while this Court has found it justified to have capital punishment on the statute to serve as deterrent as also in due response
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 to the society's call for appropriate punishment in appropriate cases but at the same time, the principles of penology have evolved to balance the other obligations of the society, i.e., of preserving the human life, be it of accused, unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society. This has led to the evolution of 'rarest of rare test' and then, its appropriate operation with reference to 'crime test' and 'criminal test'. The delicate balance expected of the judicial process has also led to another mid-way approach, in curtailing the rights of remission or premature release while awarding imprisonment for life, particularly when dealing with crimes of heinous nature like the present one."
(Emphasis supplied)
60. Considering the circumstantial evidence and conduct of the accused during the post conviction stage, it is unsafe to treat the case as the one falling under rarest of rare cases category. In Pappu's case the death sentence was commuted to imprisonment for life without remission for a period of thirty years. Relying upon the said principle, we are of the considered view that in the interest of justice, it would be appropriate to modify the death sentence of the accused accordingly. Hence, the following:
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 ORDER Criminal Appeal No.100059/2020 is partly allowed.
i) The order of conviction passed against the accused for the offence punishable under Section 302 of IPC is hereby confirmed.
ii) The impugned order of sentence passed against accused for the offence under Section 302 IPC is modified as follows:
The death sentence awarded to the appellant/accused for the offence under Section 302 IPC is commuted into that of the imprisonment for life, with a stipulation that appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 years.
iii) The order of the trial Court with regard to disposal of the properties is maintained.
iv) Acting Under Section 357(A) Cr.P.C. the matter is referred to the District Legal Services Authority,
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CRL.A No. 100059 of 2020 c/w CRL.R.C. No.100001 of 2020 Gadag, for determination of the compensation payable to the parents of deceased Devi.
Criminal RC No.100001/2020 is disposed of in terms of the above order.
The trial Court shall issue modified conviction warrant accordingly.
Sd/-
JUDGE Sd/-
JUDGE Rsh