Karnataka High Court
The Registrar General vs Mr Ramesh. A Naika on 22 September, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 22ND 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.2 OF 2014
C/W
CRIMINAL APPEAL NO.196 OF 2014
IN CRIMINAL REFERRED CASE NO.2 OF 2014
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
HIGH COURT BUILDING,
DR.AMBEDKAR VEEDHI,
BENGALURU-560001. ... PETITIONER
(By SRI: VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
AND:
MR RAMESH. A NAIKA
S/O LATE KRISHNA NAIK
BANK EMPLOYEE
R/AT SOWRABHA NILAYA
KUMUTAYYA LAYOUT
2
2ND STAGE BANASHANKARI,
TUMAKURU-572101.
PRESENTLY LODGED IN
CENTRAL PRISON,
BELGAUM. ... RESPONDENT
(By SRI: I S PRAMOD CHANDRA, ADVOCATE)
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366(1) CR.P.C. FOR CONFIRMATION
OF DEATH SENTENCE AWARDED TO ACCUSED SHRI.A.RAMESH
NAIKA BY JUDGMENT DATED 26.11.2013 PASSED IN S.C.NO.28
OF 2011 ON THE FILE OF V-ADDITIONAL DISTRICT & SESSIONS
JUDGE, DAKSHINA KANNADA MANGALURU, SITTING AT
PUTTUR, DAKSHINA KANNADA FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC.
****
IN CRIMINAL APPEAL NO.196 OF 2014
BETWEEN:
A RAMESH NAIKA
S/O LATE KRISHNA NAIK
AGED ABOUT 43 YEARS
OCCUPATION: BANK EMPLOYEE
R/O SOWRABHA NILAYA
KUMUTAYYA LAYOUT,
2ND STAGE, BANASHANKARI,
TUMKUR-572101 ... APPELLANT
(By SRI: I S PRAMOD CHANDRA, ADVOCATE)
3
AND:
THE STATE OF KARNATAKA
BY PUTTUR RURAL POLICE STATION-574201
... RESPONDENT
(By Sri: VIJAYAKUMAR MAJAGE, ADDITIONAL SPP.)
THIS CRIMINAL APPEAL 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
ASIDE THE CONVICTION AND SENTENCE DATED
26.11.2013/03.12.2013 PASSED BY THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE DAKSHINA KANNADA.,
MANGALURU SITTING AT PUTTUR, DAKSHINA KANNADA IN
S.C.NO.28 OF 2011 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHALBE UNDER SECTION 302 OF IPC.
THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
CAPITAL PUNISHMENT OF DEATH PENALTY AND SHALL BE
HANGED TILL HIS DEATH. AND THIS ORDER OF SENTENCE IS
SUBJECT TO CONFIRMATION BY THE HON'BLE HIGH COURT OF
KARNATAKA FOR THE OFFENCE PUNISHALBE UNDER SECTION
302 OF IPC.
*****
THIS CRIMINAL REFERRED CASE. AND CRIMINAL APPEAL
COMING ON FOR HEARING THIS DAY, JOHN MICHAEL CUNHA,
J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant (hereinafter referred to as "accused") was charged and tried by the V Additional District and Sessions 4 Judge, Sitting at Puttur, Dakshina Kannada in Sessions Case No.28 of 2011 for murdering his two children aged 10 years and 3½ years respectively by drowning them in a tank situated in a garden land at Ardamoole of Panaje village, Puttur Taluk, Dakshina Kannada.
He is convicted under section 302 of Indian Penal Code and is sentenced to death.
A reference has been made by the learned Sessions Judge, for confirmation of the death sentence. The accused has also preferred an appeal in Crl.A.No.196 of 2014 challenging the conviction and the order of sentence.
2. The prosecution case is that on 15.06.2010, the accused murdered his sister-in-law by name Savitha and his mother-in-law Smt.Saraswathi and dumped the dead bodies in the sump tank of his house situated at Tumakuru. On 16.06.2010, he came to Mangaluru to the rented house where his wife, two minor children and his mother were residing. In the evening, he took his two children in a taxi on the pretext of 5 taking them to the city and around 7.00 p.m., he pushed both the children into the tank situated in the garden land of PW.7 and committed their murder.
3. The first information of the offence was lodged by PW.1- the brother-in-law of the accused on 17.06.2010 at 5.30 a.m. PW.15 the then Circle Inspector took up the investigation, conducted inquest over the dead bodies. The dead bodies were forwarded to the post mortem examination and it was ascertained that the death was due to asphyxia as a result of drowning.
4. The accused was apprehended on the same day at about 12.00 p.m. from a lodge within Puttur town and was produced before PW.16 - the then Assistant Sub-Inspector of Police of Puttur Sub-Division. PW.16 arrested the accused, recorded his voluntary statement. The accused led PW.16 and the panchas to the spot of occurrence and a panchanama was drawn as per Ex.P5. Thereafter, the articles found in the lodge 6 namely two whisky bottles and three mobiles and a bunch of keys were seized under a mahazar Ex.P7. In the course of the investigation, PW.16 collected the call records in respect of the seized mobiles and laid the charge-sheet against the accused on 20.08.2010.
5. Before the Trial Court, 19 witnesses were examined as PW.1 to PW.19. Nineteen documents were produced as per exhibits P1 to P19 and M.Os.1 to 10 were marked in evidence on behalf of the prosecution. During the course of cross- examination of the prosecution witnesses, the defence got marked Ex.D1. Based on this evidence, the Trial Court convicted the accused under section 302 of Indian Penal Code and having found that the case is one of the rarest of rare case, awarded death sentence and made a reference to this court under section 366 of Criminal Procedure Code.
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6. We have heard Sri.I.S.Pramod Chandra, learned counsel for the accused and Sri.Vijayakumar Majage, learned Addl. SPP.
7. The plea of the appellant - accused is that the Trial Court has committed serious error in recording the conviction against the accused. The case of the prosecution is based exclusively on circumstantial evidence, but the evidence adduced by the prosecution in proof of these circumstances suffers from glaring inconsistencies and incongruities. The very substratum of the prosecution case is that the accused took the children from the rented house at Mangaluru. Admittedly, the mother of the accused was the only person present in the said house at the relevant time. But for reason best known to the prosecution, she has not been examined before the Court. Worse still, her statement was not recorded during investigation and she was not even cited as a witness. As a result, a serious doubt has crept in the case of the prosecution as the prosecution has deliberately withheld the best evidence and has suppressed the 8 genesis of the incident. In other words, the argument of the learned counsel is that the non-examination of the mother of the accused is fatal to the case of the prosecution and it has created a serious dent in the case set up by the prosecution.
8. Secondly, it is contended that the consistent evidence of PW.1, PW.2 and PW.3 is that the accused sent a message to PW.2 to the effect that "he had already sent his mother-in-law, sister-in-law and the children to heaven". This message was received by PW-2 around 7.30 p.m. while she along with others was proceeding to Puttur in search of the children. This message disclosed the commission of a cognizable offence. But in the complaint which was lodged at 5.30 a.m. on 17.6.2010 there is no reference whatsoever to the message which is sought to be held against the accused. The phone was seized only on 18.06.2010, two days after the incident. All these circumstances therefore suggest that after much deliberation and discussion false evidence has been created to implicate the accused.
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9. Dilating on the above point, the learned counsel submitted that the evidence relating to the details of the short message service ("SMS" for short) Exs-P16a-P16h, Exs-P18a- P18c and Exs-P19a to P19g are inadmissible in evidence. These documents are not proved in accordance with law. Their marking was objected. No certificate is produced as required under section 65-B of the Evidence Act. Therefore, reliance on this piece of evidence is misplaced. If this evidence is excluded from consideration, all other witnesses examined by the prosecution are either close relatives or interested witnesses. Therefore, the conviction recorded by the Trial Court without considering all the above aspects has rendered the impugned judgment perverse, warranting interference by this court.
10. On the question of sentence, learned counsel has submitted that the facts of the case do not warrant death sentence. There is no basis to treat the case as rarest of rare case. The accused had no criminal antecedents. PW.2 herself 10 has stated in her evidence that her relationship with the accused was cordial. Motive has not been proved. Moreover, the incident having taken place in a fit of emotional imbalance, the Trial Court ought not to have considered the case as rarest of rare case to award extreme penalty of death sentence on the accused. Learned counsel has referred to the case in UNION OF INDIA vs. V.SRIHARAN @ MURUGAN & Others, (2016) 7 SCC 1 and would contend that even if the court were to hold that the gravity of the offence required punishment in excess of fourteen years as generally computed in case of life imprisonment, still it was open for the court to impose a specific term of incarceration for 20 or 25 years as alternative to death penalty. That having not been done, the death sentence awarded by the Court below has impinged upon the human right of the accused warranting interference by this Court. Thus, the learned counsel has sought for setting aside the death sentence and has prayed for acquittal of the accused.
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11. Learned Addl. Special Public Prosecutor Sri.Vijayakumar Majage however has staunchly defended the impugned conviction as well as the death sentence awarded by the court below. Referring to the relevant portion of the evidence of the material witnesses, the learned Additional SPP submitted that the facts established in evidence and the corroborating circumstances proved through the witnesses clearly indicate that the accused had intentionally come all the way from Tumakuru to Mangaluru. It was a pre-planned murder. Evidence on record discloses that the accused devised a plan to send away his mother and then play mischief with the life of the children. That having not been materialized, the accused hired a taxi and travelled to a distance of more than 70 kms., taking the children with him to his native place - a place which was familiar to him and thereafter committed the dastardly act by pushing his own children into the tank brimming with water. The prosecution has let in direct evidence in proof of the fact that the accused took his children from the house of the 12 PW.2. He was last seen in the company of the children at the spot of occurrence. There are absolutely no loopholes or inconsistencies whatsoever in the case of the prosecution. Every fact relied on by the prosecution is conclusively proved with cogent and convincing evidence. These facts unerringly point out toward the guilt of the accused. The impugned judgment therefore cannot be faulted with. The sentence awarded by Trial Court is also commensurate with the gravity of the offence. The Trial Court has balanced the aggravating as well as mitigating circumstances to arrive at the conclusion that it is a rarest of rare case. Therefore, there is absolutely no reason to interfere with the impugned conviction as well as sentence awarded by the court below. Learned Addl. Special Public Prosecutor has drawn our attention to the fact that as on the date of awarding the present conviction and sentence, the accused had suffered a conviction in S.C.No.69 of 2011 passed by the Fast Track Court-I at Tumkur by order dated 19.06.2012 and was awarded a sentence of imprisonment for life. The accused has not appealed 13 against the said order and as such, the said conviction having become final, the Trial Court was justified in imposing death penalty on the accused.
12. We have bestowed our careful thought to the submissions made at the Bar and have examined the records. There is no dispute as to the fact that the accused married PW-2 Sundari in 1997. They had two children by name Bhuvanraj and Krithika. The accused was working in Punjab National Bank. PW- 2 was an employee of State Bank of Mysore. At the time of their marriage, PW-2 was working at Aluru Branch, and the accused was posted at Tumakuru. In 2004, they had constructed a house in Tumakuru. In 2010, PW-2 was transferred to Mangaluru and the accused was transferred to Solapur, Maharashtra. PW-2 took up a rented house near Mangaladevi Temple in front of Kulalabhavan in Mangaluru and was residing there with her two children. The accused used to visit them once in 15 days. The mother of the accused was also residing with PW-2 at Mangaluru. During the relevant time, the sister of PW-2 now 14 deceased Savitha who was then working in Bengaluru in Provident Fund Office was staying in the house built by the accused and PW-2 at Tumakuru. She used to travel everyday from Tumakuru to Bengaluru. As she was alone, about a week prior to the incident, the mother of PW-2 Smt. Saraswathi had started residing with Savitha at Tumakuru.
13. In the backdrop of the above undisputed facts, let us now proceed to recapitulate the evidence let in by the prosecution to test the correctness and legality of the findings recorded by the Trial Court.
14. PW-1 Aithappa Naika is the elder brother of PW-2. According to this witness, on 16.6.2010, the accused called him over phone and asked him to come near Town Hall, Mangaluru. Accordingly, at 8.30 a.m., he went there and met the accused. Both of them had coffee in a hotel. The accused handed over to him a plastic cover and told him that it contains some money 15 and asked PW-1 to keep it, as accused intended to purchase a site at Mangaluru.
At about 2.00 p.m., PW-1 received a phone call from his sister viz., PW-2. She informed him that their sister and mother at Tumakuru were not responding to the phone call and that she ascertained from their neighbour Bhagyamma that the house has been locked from outside and on the previous night, the accused had been to Tumakuru. PW-1 further deposed that PW-2 informed him that when she called the accused, he informed her that Savitha had gone to Manipal Hospital for check-up and her mobile had fallen in water and therefore, she could not respond to the phone call of PW-2. But after sometime, PW-2 herself received a message through the mobile phone of Savitha. The text read that she had gone to Manipal Hospital and would call her in the evening. As PW-2 became suspicious as this message was contrary to the information given by the accused, she asked PW-1 to come home immediately.
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PW-1 further deposed that when he and PW-2 along with PW-3 went to the house of PW-2 at Mangala Devi, the mother of the accused alone was in the house. The children were not seen. On enquiry the mother of the accused told them that the accused has taken the children to the City. Since the children and the accused did not return till 6.00 p.m., and the mobile phone of the accused was also switched off, they began to suspect some foul play and hence, PW-3 contacted the person who had arranged the taxi for accused and collected the mobile number of the driver and came to know that the driver had dropped the accused and the children at Ardamoole. On getting this information, PWs-1, 2 and 3 who had earlier decided to go to Tumakuru, decided to proceed to Ardamoole in search of the children. They requested the driver (PW-9) to show the place where he had dropped the accused and the children. Accordingly, PWs-1, 2 and 3 along with the mother of the accused, went in search of the missing children in the car of his brother-in-law. On the way, they dropped the mother of 17 accused at Panjala and took the father of PW-1 and PW-2 and followed the driver-PW-9. PW-9 showed them the location where he had dropped the accused and the children. When they came near the house of PW-4 - a local resident by name Mahalinga Naika, informed them that he had seen the accused taking the children into the garden land of PW-7 at about 6.45 p.m. and returning alone around 7.20 p.m. PW-4 called one Krupashankar B., an Advocate and an agriculturist from the locality. After getting the key of the gate from PW-7, they started searching for the children in the garden land. At about 10.45 p.m., they found the bodies of the children floating in a tank situate in the land of PW-7. Immediately, the police were alerted and fire brigade was procured and the bodies were taken out from the tank. PW-1 lodged the complaint as per Ex-P1. He further stated that the plastic cover which was given to him by the accused was handed over to the police and at their instance, an amount of Rs.17.00 lakhs contained in the said cover was deposited in the account of PW-2.
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Though PW-1 is subjected to lengthy and incisive cross- examination, the defence has not been able to shake the veracity of the testimony of this witness with regard to the facts deposed by him that on the request of the accused, he had gone near the Town Hall and had collected the cover containing Rs.17.00 lakhs from the accused. Even in the cross-examination, he maintained the sequence of events narrated by him in the chief-examination, thus laying down a strong foundation to build up the case of the prosecution.
14.1 PW-2 is the wife of the accused. According to her, she came to know about the arrival of the accused to Mangaluru on that day (i.e.,16.6.2010) through PW-3. She has stated in her evidence that PW-3 informed her that the accused was searching the key of the locker and she inturn told him that the locker key was kept in the Almirah (bureau). She has elaborately deposed the efforts made by her to contact her sister Savitha and since she could not get her and their mother on phone, she requested 19 Smt. Bhagayamma, a neighbourer to enquire about the whereabouts of Savitha and came to know that the house was locked from outside and that the accused had come to Tumakuru house on the previous night. She has corroborated the testimony of PW-1 stating that she informed all these facts to PW-1 and asked him as well as PW-3 to come home so that they could go to Tumakuru. But, on reaching home, they came to know that the accused had taken the children alongwith him in a car and since they did not return till 6.00 p.m., they contacted the driver and having ascertained the location where he had dropped the accused and the children, they proceeded to Puttur alongwith the mother of the accused. She has further deposed that PW-4 informed them about the movements of the accused and the children and on the basis of the said information with the help of PW-4, PW-6 and the owner of the property PW-7, they traced the dead-bodies of the children in the tank in the garden land of PW-7.
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14.2 Even the testimony of PW-2 with regard to the sequence of events narrated by her has not been shaken or discredited in the cross-examination and nothing has been brought out in her evidence to doubt or to disbelieve the various circumstances narrated by her with regard to the involvement of the accused in the incident in question. During her evidence, she has identified the mobile phone of the deceased Savitha M.O.6 and also the two mobile phones of the accused M.Os.4 and 5 and also identified the key bunch- MO-2, which were seized from the possession of the accused. She has also spoken about the message received by her from the mobile phone of deceased Savitha as well as from the mobile phone of the accused.
14.3 PW-3 is the nephew of the accused. This witness has also deposed in line with PWs-1 and 2 stating that on 16.06.2010, in the morning the accused asked him to come over to Mangaluru. Accordingly, at about 10.45 a.m., he went to the house of PW-2. The accused and his mother were in the house. The accused asked him to look for the key of the locker. He 21 contacted PW-2 and found the key of the locker. Thereafter both of them went to Punjab National Bank. The accused took out a cover from the locker and thereafter both of them returned home.
PW-3 has specifically stated in his evidence that after reaching home, he himself picked up the younger child from Anganawady and all of them had lunch. He further deposed that the accused wanted to send his mother to Perla to her native place and therefore he had arranged a car. But the mother of the accused was reluctant to go to Perla. She talked to PW-2 and decided to stay back. Thereafter, since PW-2 asked him to come near her bank, he went to the bank of PW-2 and in the evening he alongwith PW-1 and PW-2 returned home. But they could not find the accused and the children at home. On enquiry, the mother of the accused told them that the accused had taken the children to the city. This witness has also reiterated in his evidence that since the children did not return till the evening, suspecting some foul play, he collected the phone number of the 22 driver and it was ascertained that the driver had dropped the accused and the children at Ardamoole and thereafter all of them proceeded to Ardamoole and on getting the information from PW-4 that the accused had taken the children to the garden land of PW-7, they searched the property in torch light and found the dead bodies of both the children floating in the tank. His testimony has stood unshaken in the cross-examination and nothing has been brought out in the entire cross-examination to suggest any falsity and inconsistency leading to doubt or disbelieve his evidence.
14.4 PW-4 has categorically stated that on the date of the incident on 16.06.2010, at about 6.45 p.m., while returning from daily work he saw the accused taking two children along with him inside the garden land of PW-7 and about 7.20 p.m., when was going to the shop to buy provisions, he saw the accused returning alone. This witness has substantially corroborated the evidence of PWs-1, 2 and 3 with regard to the fact that at about 9.30 p.m., on the same day PWs-1 and 2 and 23 others came in search of the children and he told them about seeing the accused and the children going to the garden land of PW-7. He has clearly identified the accused in the witness box and has stated that on tracing the dead bodies, he identified them as that of the two children who were taken by the accused in the garden land in the evening. The testimony of the witness has not been shaken in the cross-examination and no circumstance has been brought out in the entire cross- examination to suggest that he was either a chance witness or that he has given false evidence before the Court.
14.5 PW-5 is the panch witness to the inquest mahazar at Exhibits-P3 and P4.
14.6 PW-6, Sri.B.Kripashankar, is the resident of Ardamoole of Panaje Village. He is an agriculturist and an advocate by profession. According to his witness, on 16.06.2010 he received a phone call from PW-4 informing him about PW-1 and PW-2 and others searching for the missing children. He has 24 categorically stated in his evidence that PW-4 asked him to come near the garden land of PW-7 and requested him to bring the key of the gate. Accordingly, he contacted PW-7 and on his request, PW-7 brought the key and they opened the gate lock and entered the garden land and found the dead bodies of the children floating in the tank.
This witness is also examined as a panch witness to the inquest mahazars-Exhibits-P3 and P4 and has further deposed that in his presence, the Investigating Officer prepared the spot mahazar as per Ex-P5 and seized a pair of slippers and collected two bottles of sample water from the tank. Thereafter, the Police took him and other panch witness to Hotel Rama Lodge, Puttur. At the instance of the accused, the room was opened and three mobile phones, a key bunch and two whisky bottles were seized from Room No.209. In his evidence, he has identified the keys, MO-2, three Mobile Phones MOs 4, 5 and 6 and the whisky bottles MOs-7 and has further stated that the relevant copy of 25 the Lodge Register was also seized during the Mahazar at Ex-P7. He identified the copy of the Lodge Register at Ex-P6.
14.7 PW-7, Sri.Sathyanarayana Prasad A.R., is the owner of the arecanut garden land, where the dead bodies were traced. This witness has corroborated the testimony of PW-6 stating that at the request of PW-6 he brought the keys and opened the lock put to the gate and thereafter PWs-1, 2 and others along with the driver started searching for the children and found their dead bodies floating in the tank situated in his land. In the cross- examination, an attempt was made to show that there was no other way to enter the garden land other than through the main gate, but PW-7 has classified that by the side of the gate, there was a ditch and touching it there was a water channel through which one could gain entry into the land without going through the main gate. Apart from this, no other circumstances are been brought out in the cross-examination of this witness affecting the credibility of his evidence. PW-7 is also an attester to Exs-P5 and P7.
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14.8 PW-8 Sri. Keshava Murthy, was the receptionist of Rama Lodge from where the accused was arrested. According to this witness on 16.06.2010 at about 10.00 p.m., the accused booked Room No.209 by paying an advance of Rs.500/-. At the time of admission, he had signed the Register. PW-8 identified the signature of the accused in the admission register, Ex-P6 and further stated that the accused was arrested at about 12 noon on the following day and he was asked to lock the room and thereafter at about 6.00 or 7.00 p.m., ASP, Puttur along with other witnesses came to the lodge and seized a bunch of keys, three mobile phones and two whisky bottles from Room No.209 and drew up the mahazar as per Ex-P7. He has identified his signature on Ex-P7. In the cross-examination, he has answered that there was no restriction to consume liquor in Rama Lodge. He has maintained that when the accused was arrested at about 12 noon, the articles were not seized and he himself locked the door on the directions of the Police and opened it only when the Police came for drawing the mahazar.
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14.9 PW-9, Sri.Firoz P.S., is the driver who took the accused and the children to Ardamoole on the date of the incident. According to PW-9, he was working under one Leo. On 16.06.2010 about 3.45 or 4.00 p.m., his owner asked him to pick up a customer near Managala Devi Temple. At about 4.50 p.m., he went near the house of the accused. The accused and two children boarded his car. On the instructions of the accused, he took them to Hampanakata and from there, he was asked to drive to Hotel Hariprasad, Puttur where they had tea. Thereafter, on the instructions of the accused, he proceeded to Panaje and dropped the accused and the two children in front of the gate of areca garden at Ardamoole. At about 6.30 to 6.45 p.m., while he was returning home, he received a phone call asking about the persons whom he had dropped. When he told them the place where he had dropped the accused and the two children he was requested to show the place where he had dropped them. Accordingly, he waited at Santyaru. At about 8.30 p.m., 5-6 persons came there in a Qualis Car and he showed them the 28 location where he had dropped the accused and the children. After sometime a local Advocate namely Sri.B.Kripashankar PW- 6 came there along with the owner of the land and another person (PW-4). They opened the gate and searched for the children and traced two dead bodies floating in the tank. He has specifically stated in the chief-examination that on seeing the dead bodies he identified them as that of the children who had accompanied the accused in his car on that date.
Nothing has been elicited in the cross-examination of this witness to discredit his testimony regarding the fact that he has picked up the accused and the deceased children near Mangaladevi Temple and dropped them about 6.45 p.m., in front of the garden land of PW-7. He has also stood firm in the cross- examination that on the enquiries of PW-2 he showed them the location where he had dropped the accused and two children and joined PW-2 and others in searching the children. 29
14.10 PW-10, Ramesh.K, is an auto-driver. He acted as a panch witness to the seizure of the mobile phone of PW.2 under the Mahazar Ex-P2. He has identified the said mobile MO.1.
14.11 PW-11, Dr.Geethalakshmi is the FSL Expert, who issued a report as per Ex-P9.
14.12 PW-12, Dr.Deepak Rai, is the Medical Officer of General Hospital, Puttur. He conducted the autopsy on the dead bodies of the deceased children and issued postmortem reports as per Exs-P11 and P12. According to PW-12, the death was due to asphyxia as a result of drowning.
14.13 PW-13 is the police constable attached to the Puttur Rural Police Station. He submitted the FIR, Ex-P13 to the incharge Magistrate. He has identified the complaint at Ex-P1. PW-14 is another Police Constable who handed over the dead bodies to PW-2 after the postmortem examination. 30
14.14 PW-15 is the Circle Inspector at Puttur Rural Police Station. He took over further investigation and conducted inquest mahazars as per Exs-P3 and P4 and deputed the staff to search the accused.
14.15 PW-16 is the CPI of Puttur Rural Police Station. He recorded the voluntary statement of the accused as per Ex- P15 and pursuant to the said voluntary disclosure conducted the spot mahazar as per Ex-P5. Thereafter, he proceeded to Hotel Rama Lodge and in the presence of the witnesses seized MOs 2, 4, 5, 6 under a Mahazar Ex-P6 and also seized the copies of the relevant pages of the Lodge Register as per Ex-P6. In the course of investigation, he sent the seized mobile phones for examination to SP, Cyber Wing CID and obtained the details of the SMS and two C.Ds., at Exs-P16 and P17 and on completing the investigation, laid the charge-sheet against the accused.
14.16 PW-17 is the classmate and a friend of the accused. This witness is examined to speak to the fact that he 31 gave the SIM No.9449302858 belonging to PW-18 to the accused.
14.17 PW-18 is also examined and has stated that above SIM was given by him to PW-17 about 12 years back.
14.18 PW-19 Sri. P. Mohan is an employee working in Provident Fund Office at Peenya, Bengaluru. According to the prosecution, PW-19 was proposed to marry the deceased Savitha. He has stated in his evidence that the deceased herself wanted to marry him and by the time they could discuss the matter with the parents, the deceased was done to death. With regard to the motive, this witness has stated that in May' 2010 his superiors had received a complaint alleging that he was misbehaving with the lady employees and in view of the said complaint he was transferred to another section. Later deceased Savitha told him that the said complaint was given by her brother-in-law namely, the accused. This witness has further stated that in February' 2010 he received a call to his mobile 32 phone from a person who introduced himself as Ramesh, brother of Savitha and informed him that he was against inter-caste marriage and when he informed this matter to the deceased Savitha, she told him that the person who called him was not Ramesh, but her brother-in-law, namely the accused.
15. As could be seen from the above evidence, there are no eyewitnesses to the incident. The case of the prosecution is rested entirely on circumstantial evidence. In page 45 of the impugned judgment, the trial court has enumerated the circumstances that emerge from the evidence viz.,
1. Arrival of the accused on the morning of 16.06.2010 from Tumakuru to Mangalore,
2. Accused moving with his children from Mangalore to Ardamoole,
3. The accused was last seen together with the children at Ardamoole and left Ardamoole alone.
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4. SMS conversation between the accused and PW-2.
5. The children were found dead in the tank in the areca garden of PW-7 at Ardamoole
6. Apprehension of the accused at Puttur on 17.06.2010.
7. Homicidal death of the children.
8. Motive for the incident.
9. Failure on the part of the accused to offer explanation to the incriminating circumstances appeared against him.
16. On scrutiny of the statements of the witnesses in the light of the corroborating evidence produced by the prosecution by way of seizure of the mobile phones, call details, SMS sent by the accused, the trial court has held that the prosecution has proved all the above circumstances to the hilt. These 34 circumstances unerringly point towards the guilt of the accused and consequently recorded the conviction against the accused under section 302 Indian Penal Code. Even on re-appreciation of the entire evidence on record and on incisive analysis of each and every circumstance of the case, we do not find any justifiable reason to differ with the view taken by the trial court on the culpability of the accused.
17. We find from the records that overwhelming evidence is produced by the prosecution in proof of the fact that the accused had come to the rented house of PW-2 at Mangaluru on the date of the incident. By the evidence of PW-3, it stands established that the accused himself asked him to come over to Mangaluru and thereafter both of them went to Punjab National Bank, where the accused collected the cover from the locker. The evidence of PW-1 indicates that the accused handed over the said cover containing Rs.17.00 lakhs to him near the Town Hall and in the course of the investigation, this money is seen to 35 have been deposited in the account of PW-2. Thus there is intrinsic corroboration to the testimony of PW-3 that the accused was found in the house of PW-2 in the morning of 16.06.2010. Though the conduct of the accused in taking the money from his locker and handing it over the PW-1 has remained intriguing, but inconsequential to the case of the prosecution, yet, the fact remains that the accused had come to Mangaluru on the date of the incident and was very much present in the house of PW-2 in the morning of 16.06.2010.
18. The evidence of PW-2 indicates that she was totally unaware of the arrival of the accused to Mangaluru on that day until PW-3 asked her for the keys of the locker and informed her of the arrival of the accused. It is really surprising to note as to why the accused did not directly enquire PW-2 about the locker key. The very fact that the accused collected this information through PW-3 indicates that the accused wanted to keep the matter secret from PW-2 and he did not want PW-2 to know about his movements. Be that as it may, the evidence of PW-1, 36 PW-2, PW-3 clinchingly establishes that on 16.6.2010, in the morning, the accused was in the house of PW-2 near Mangaladevi Temple, Mangaluru.
19. The fact that the accused had taken the children with him on 16.06.2010 in the evening at about 5.00 p.m. from the house of PW-2 is proved by the direct evidence of PW-9. Needless to say that PW-9 is an independent and disinterested witness. The sequence of events narrated by him in his evidence clearly disclose that he picked the accused and the children from their house near Mangaladevi temple and dropped them near the spot of occurrence. He has graphically narrated the various places where he went before reaching the said spot. More importantly, PW-9 showed the location to PWs-1, 2 and others where he dropped the accused and the children which led to the discovery of the dead-bodies. It is significant to note that PW-9 also joined PW-2 and others in searching the children. When the dead-bodies were recovered, he readily identified the deceased as the very same children, who had travelled in his car alongwith 37 the accused on that day. He has also identified the accused in the witness-box. His evidence therefore establishes an important link connecting the accused to the offence charged against him.
20. There is absolutely no reason to doubt or disbelieve the testimony of PW-9. He has given a natural account of the events that had taken place from the time he picked the accused and the children from Mangaluru till the recovery of the dead- bodies. His name finds place in the complaint Ex-P1 lodged at the earliest point of time and his testimony is duly corroborated by PW-1, PW-2 and PW-3 and also by PW-6 and PW-7. Therefore, his evidence deserves full credence and could be taken as the prime circumstance to hold that the accused took the children from his house to the place of occurrence and he was seen in the company of the deceased children till 6.40 p.m. on that day. In the wake of the direct evidence of PW-9, the contention urged by the learned counsel for the appellant that non-examination of the mother of the accused has rendered the 38 case of the prosecution weak and vulnerable in proving the factum of the accused taking the children from the house looses it significance. No-doubt, it is true that the examination of the mother of the accused who was very much available in the house when the children were taken by the accused, would have strengthened the case of the prosecution as she was one of the competent witnesses to speak to this fact, but in view of the equally acceptable evidence produced by the prosecution in proof of this circumstance, in our opinion, non-examination of the mother of the accused neither weakens the case of the prosecution nor does it render the evidence of PW-9 improbable or doubtful. On overall consideration of the evidence of PW-9 in the backdrop of the surrounding circumstances proved in evidence, we accept the evidence of PW-9 as wholly reliable and trustworthy in proof of the fact that on 16.06.2010, in the evening, the accused took the children in the car of PW-9 and got down near the gate of the garden land of PW-7 at about 6.45 p.m. 39
21. From the evidence of PW.19 it can be gathered that even though PW-9 offered to drop the accused at the desired house, the accused insisted to get down at the entrance of the garden land of PW-7. The evidence on record discloses that the place was familiar to the accused as he was a native of Panaje. He was seen going into the garden land of PW-7 alongwith the children and returning alone in panic as testified by PW-4. Though it is argued that PW-4 was a chance witness, but the circumstances brought out in his cross-examination indicate that he is a truthful witness and he noticed the accused on his way back home after his daily work. He has given acceptable reasons for his presence at the spot where he found the accused and the children. That he was a regular wayfarer passing in front of the garden land of PW-7 is corroborated by PW-7-the owner of the land as well as by PW-6 Krupashankar. B., an Advocate and a local agriculturist, who arrived to the spot pursuant to the information given by PW-4.
40
22. That PW-4 was a resident of the locality is not in dispute. Therefore, no way PW-4 can be termed as a chance witness. His evidence finds full support and corroboration from the surrounding circumstances as well as by the testimony of the adjoining owners. On thorough consideration of his evidence, we find that the evidence of PW-4 is fully reliable and trustworthy and can be accepted in proof of the fact that the accused and the children were last seen entering into the garden land of PW-7 at about 6.45 p.m., on the date of the incident and the accused returning alone at about 7.20 p.m.
23. Another aspect which inspires confidence in the testimony of PW-4 is that PW-1, PW-2 and PW-3 have consistently stated that when they were searching for the accused and the children, they came near the house of PW-4 about 9.30 p.m. and PW-4 readily informed them that he had seen the accused and the children going into the garden land of PW-7, which prompted them to search for the deceased at the exact location. This evidence is corroborated by the testimony of 41 PW-6 that he sought the help of PW-7 to go into the garden land which fact has been confirmed by PW-6 in his evidence. It has also come in the evidence of PW-6 that the keys of the gate were procured from PW-7 and all of them went inside the garden land of PW-7. These sequence of events not only lend assurance and credibility to the testimony of PW-4, but also inspires full confidence to hold that he had actually seen the accused taking the children in the garden land of PW-7 at about 6.45 p.m. on that day and returning alone at 7.20 p.m. on the date of the incident.
24. It has been argued that the garden land of PW-7 was surrounded by a fence and the entrance gate was locked and therefore, there was no possibility for the accused to gain entry into the garden land as contended by the prosecution witnesses. But the evidence produced by the prosecution proves it otherwise. It is true that the above witnesses have stated that they found the gate leading to the garden was locked when they 42 were searching for the accused and the children, but, PW-4 has answered in the cross-examination that one can get into the garden land without passing through the gate. He has maintained that accused went inside by the side of the gate. The fact that one can gain entry into the garden by the side of the gate is confirmed by PW-7, who is none other than the owner of the said garden land. He is the most competent witness to speak about this fact. In the cross-examination, PW-7 has answered that by the side of the gate, there was a ditch and on crossing the water channel by the side of the ditch, one can enter the garden land. Thus it stands established that PW-4 has not only seen and identified the accused, but has even narrated the manner in which the accused gained entry into the garden land, thus inspiring full confidence to hold that the accused and the children were last seen together entering the garden land of PW-7.
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25. Moreover, the time gap between the point of time when the deceased children and the accused were last seen and when the dead-bodies of the children were traced was so small, the possibility of any person other than the accused being the author of the crime becomes impossible. Therefore, we have no hesitation to accept the evidence of PW-4 to hold that the prosecution has conclusively proved the fact that just before the tracing of the dead-bodies of the children, the accused was seen taking them into the garden land and the accused returned alone at about 7.20 p.m.
26. In our considered opinion, the above three circumstances by themselves are sufficient to form a complete chain of circumstances establishing to the complicity of the accused in the offence in question. But added to the above circumstances, the prosecution has let in other reliable evidence to show that the accused was arrested on the next day at a distance of about 20km from the spot. We have already 44 discussed the evidence relating to the arrest of the accused from Hotel Rama. There is no explanation by the accused as to his presence in the lodge on that day when he was supposed to be either at his work place at Solapur, Maharashtra or in the house of PW-2 at Mangaluru. When the prosecution has proved that the accused had taken the children with him on the date of the incident and later, he was found alone in the place other than his ordinary place of residence, in the absence of any plausible explanation, the presence of the accused in Hotel Rama on 17.06.2010 furnishes another link to the chain of the circumstances pressed into service by the prosecution.
27. In addition to the above circumstances, the prosecution has also produced the call details and SMS sent by the accused in order to bolster up the charge against him. In para 65 onwards, the learned trial Judge has discussed at length the evidence produced by the prosecution in this regard. The learned counsel for the appellant however has strenuously contended that the evidence relating to the call records and the 45 SMS and the mobile phones relied by the prosecution is not admissible in evidence. The learned counsel has referred to the objections raised by the defence while marking these documents. He has referred to Section 65B of The Indian Evidence Act, 1872 to contend that in the absence of any certification from the competent person, the mobile phones and the call records which were produced by the prosecution could not have been admitted in evidence nor could have been relied on by the court in recording a finding of guilt against the accused. This argument in our view is wholly misconceived and does not help the accused to advance his contentions.
28. Firstly, the call records and the message are not produced by the prosecution as substantive evidence. These documents and materials appear to have been produced only to corroborate the evidence of the prosecution witnesses namely, PW-1 and PW-2 to substantiate the sequence of events narrated by them as to how they came to suspect the movements of the 46 accused. These mobile phones of PW-2 and the accused as well as the mobile phone of deceased Savitha are produced to corroborate the testimony of PW-1 and PW-2 that the accused himself sent a false message from the mobile phone of deceased Savitha to mislead PW-2 that Savitha was still alive and was admitted in Manipal Hospital when infact the accused had murdered her on the previous day and dumped her body in the sump tank. Under the said circumstances, these documents viz., the call records and the SMS produced by the prosecution becomes relevant under Section 6 of the Evidence Act as res gestae and also as circumstances which show the motive of the accused for commission of the offence, under section 8 of the Evidence Act.
29. With regard to the objection raised by the defence in admitting these documents in evidence is concerned, it is relevant to note that during examination of the Investigating Officer-PW-16, when the copy of the SMS details and the CDs 47 were sought to be produced in evidence, objections were raised to mark those documents and in view of the said objection, the SMS details and the CD viz., Exs-P16 and 17 were marked subject to the objection. It is pertinent to note that even though objection was raised for marking those documents, the learned counsel for the accused did not specify as to whether the said objection related to the mode of proof or with regard to the admissibility of the documents. Even before this Court, it is not explained as to how these documents are inadmissible in evidence. It is not the case of the accused that the original mobile phones and the call records are per se inadmissible in evidence. It is not in dispute that the mobile phones through which the calls were made and the SMS were sent by the accused were produced in evidence and they are marked as M.O.1, M.O.4, M.O.5 and M.O.6. In his examination under Section 313 Cr.P.C, the accused has admitted that M.O.4 mobile handset belongs to him and it carries phone No.9448500952. The accused also admitted that M.O.5 is a mobile handset given 48 to him by his bank bearing No.9595016655. Further, the accused has admitted the fact that M.O.1 is the mobile handset belonging to PW-2 bearing No.9449302858. The original handset containing the calls made therefrom and the SMS sent therefrom have been produced before the Court in original. The requirements of certification under Section 65-B of the Evidence Act would arise only when the copies of the electronic records or documents are sought to be produced in evidence. In this context, a useful reference could be made to para 24 of the decision in ANVAR P.V VS P.K.BASHEER & ORS (2014) 10 SCC 473, wherein the Hon'ble Supreme Court has clarified the legal position thus:
"24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary 49 evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65- B of the Evidence Act."
(Emphasis supplied) 50
30. As the primary evidence itself is before the Court, the objection raised in that regard based on Section 65 of the Evidence Act is liable to be rejected.
31. With regard to the contents of SMS are concerned, we fully approve the procedure adopted by the learned Sessions Judge in bringing on record the contents of these SMS. We have perused the lower court records. It is seen that the learned Sessions Judge has passed a detailed order on the applications made by the prosecution under Sections 3, 62 and 65B of the Evidence Act and Sections 230 and 311 Cr.P.C. on 19.4.2013. Further, the proceedings dated 22.10.2013 reveal that M.Os.1 and 4 viz., the mobiles which were seized by the Investigating agency, were opened in the open court. These mobile phones were charged and SMS therein were transcribed by the court in the open court. These transcriptions were very much available to the accused at the time of cross-examination of the witnesses. Therefore, it does not lie in the mouth of the accused now to 51 contend that reliance on this material is illegal or contrary to the procedure prescribed under the Evidence Act. Even otherwise the law is well settled that objection regarding the proof of documents if not taken at the time when the document is produced before the court, the party cannot be permitted to raise the said objection at the appeal stage. In SONU @ AMAR vs. STATE OF HARYANA (2017 SCC ONLINE SC 765), the Hon'ble Supreme Court had an occasion to consider such an issue and 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 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 52 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 Senior Counsel for the State referred to 53 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)
32. The accused had full and ample opportunity to explain the circumstance of SMS sent by him. The accused having not offered any explanation, the trial court was justified in placing reliance on the contents of these messages. The Trial Court has reproduced the contents of these messages in the impugned judgment in verbatim and we do not find it necessary to burden the record by reproducing them over again. Suffice it to note that the author of these SMS and call records have been proved and these SMS lend suitable corroboration to the 54 testimony of PW-2 that accused sent a false message through the Mobile (M.O.6) of deceased Savitha, after her death misleading PW-2 that she was admitted in Manipal Hospital and further that after drowning the children in the tank, he sent her the message through his mobile M.O.4 that he had already sent his mother-in-law, sister-in-law and children to heaven.
33. Finally, with regard to the motive, the prosecution has examined PW-19 - Mohan who was proposed to marry the sister-in-law of the accused. This witness has confirmed the fact that the accused had objected to his proposed marriage with deceased Savitha, which had triggered the difference between the accused and PW-2 and other members of the family. But, looking to the overall facts and circumstances proved by the prosecution, especially the tenor of the message sent by the accused to PW-2 after the commission of the offence would clearly indicate that the accused was motivated to liquidate the entire family of PW-2. Apparently with this motive, the accused 55 committed the murder of Savitha- his sister-in-law and his mother-in-law and on the following day, he committed the murder of the innocent children. Therefore, the surrounding circumstances proved by the prosecution in our opinion clearly establish the motive for the commission of the offence charged against the accused.
34. Thus, on consideration of all the above facts and circumstances, we are of the firm view that the prosecution has brought home the guilt of the accused beyond reasonable doubt. The circumstances discussed above clearly establish the offence charged against him. The trial court, therefore, was justified in recording the conviction against the accused. We do not find any error or infirmity in the impugned judgment. The findings recorded by the trial court are based on legal evidence. Even on reconsideration of the entire material, we do not find any reason to hold a different view. To reiterate, the prosecution has proved each and every circumstance with cogent and convincing 56 evidence. It is proved in evidence that on the date of the incident, the accused had come to Mangaluru to the house of PW-2. The accused had intentionally kept his arrival secret. It is proved by the prosecution that in the morning of 16.6.2010, the accused was very much present in the house of PW-2 and in the evening, he took both his children to the garden land of PW-7 and got down near the gate of the garden land of PW-7 at Ardamoole. It is convincingly established in evidence that the accused and the children were last seen together going into the garden land and at about 7.20 p.m., the accused was seen returning alone from the garden land of PW-7. The accused was arrested near about the spot of occurrence. There is absolutely no explanation by the accused as to the whereabouts of the children whom he had taken along with him on the date of the incident. It is also proved by the prosecution that after commission of the offence, the accused sent message to PW-2 informing her that he has sent his mother-in-law, sister-in-law Savitha and the two children to heaven and he even prompted 57 PW-2 to commit suicide. The prosecution has also convincingly established the motive. All these circumstances, unerringly point out that the accused and the accused alone committed the murder of his two innocent children. Therefore, we have no hesitation whatsoever to confirm the conviction recorded by the trial court. Accordingly, the impugned judgment is upheld and the conviction of the accused for the offence under section 302 Indian Penal Code is confirmed.
35. On the quantum of sentence, we have heard at great length the learned counsel for the accused and the learned Addl. Special Public Prosecutor. We find from the impugned order that the Trial Court has weighed the aggravating and mitigating circumstances and held the view that the aggravating circumstances far outweigh the mitigating circumstances and accordingly has awarded the extreme penalty provided under section 302 of Indian Penal Code.
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36. The aggravating circumstances noted by the Trial Court are that:
(i) It was a pre-planned murder. After committing the murder of his mother-in-law and sister-in-law, the accused came to Mangaluru on the following day, hired a taxi and took the children with him to a distance of about 70 kms., from Mangaluru and pushed them in a water tank at his native place.
(ii) The offence was committed against his own children.
Both the children were of tender age. They were not in a position either to suspect the accused or to offer any resistance. There was no provocation by them. The accused directed his ire against innocent and helpless children.
(iii) The conduct of the accused did not display a sense of remorse or compunction. After the incident, he was seen taking shelter in a lodge close to the spot of occurrence with whisky bottles. Even after committing the murder, he sent SMS to PW.2 asking her to end her life which shows that he intended to 59 liquidate not only the mother and sister of PW.2, but he did not want even PW.2 to live on the face of this earth.
(iv) The act of the accused committing the murder of innocent minor children, the mother-in-law and his sister-in-law and abetting PW.2 to commit suicide and his act of meddling with the trial by threatening the witnesses disentitles him for any leniency.
(v) Even during trial, the accused threatened the prosecution witnesses and in this regard, C.C.No.3080 of 2012 on the file of the III Addl. Civil Judge and JMFC, Tumakuru and S.C.136 OF 2013 was filed before the Sessions Court at Tumakuru. The act committed by the accused is gruesome. He has no respect for human life. Therefore, the punishment awarded to the accused should serve as a deterrent to the Society at large.
37. We are in complete agreement with the reasoning assigned by the Trial Court. No doubt, life imprisonment is the 60 rule and death penalty is an exception and it is only when there is something uncommon about the crime which renders the sentence of imprisonment for life inadequate, there can be a valid justification for award of extreme penalty of death sentence.
38. In BACHAN SINGH's case, the Constitution Bench of the Hon'ble Supreme Court of India has laid down the test to be applied to the facts of each individual case when the question of imposition of death sentence arises;
(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having 61 regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
39. In the instant case, the mitigating circumstances pleaded by the accused are detailed by the Trial Court in page 72 of the impugned judgment. Even before this Court, the learned counsel has reiterated that the accused had no bad antecedents; the whole episode had taken place in a fit of mental imbalance; and that the accused has an aged mother to be looked after.
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40. In our opinion, none of the above pleas could be treated as mitigating circumstance to lessen the rigor of punishment to be awarded to the accused.
41. In MACHHI SINGH & OTHERS vs. STATE OF PUNJAB, 1983 SCC (Cri) 681, the Hon'ble Supreme Court while applying the guidelines laid down in BACHAN SINGH & Another vs. STATE OF BIHAR, (2008) 12 SCC 23 has laid down the parameters to assess the individual cases with reference to the motive, manner of commission of the crime, anti-social or abhorrent nature of the crime to the society. It reads:
I. Manner of Commission of Murder
33. When the murder is committed in an
extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,
(i) When the house of the victim is set aflame with the end in view to roast him alive in the house. 63
(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
(iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II Motive for Commission of murder
34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.
III Anti-social or socially abhorrent nature of the crime
35.(a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to 64 terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.
(b) In cases of 'bride burning' and what are known as 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
IV Magnitude of Crime
36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
V Personality of Victim of murder
37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder. (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public 65 figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.
42. The case of the appellant, in our opinion, squarely falls within (I), (IV) and (V) clauses noted in the above decision. The manner in which the accused has committed the offence in a gruesome, revolting and inhuman manner, the magnitude of the crime, the personality and the conduct of the accused in murdering his own children whom he was supposed to protect and preserve and the motive for the commission of the offence call for the extreme penalty provided under law.
43. When a person commits four murders, annihilates the members of his own family in quick succession and does not even spare his own children cannot be allowed to plead that his life has to be spared just because he did not have any criminal antecedents. His good antecedents or track record cannot absolve him from the culpability and the consequences of the 66 gruesome murders. A person who has deprived another person his liberty and has endangered the liberty of his own family members has forfeited his right to ask the court to uphold his liberty. We are shocked to note the plea put forth by the accused before the court below. Despite committing abhorrent crimes with impunity, he had the temerity to submit before the court that he was driven to commit the offence "because of PW.2 being his wife and her parental family members put him to untold miseries in his life, they are also responsible for the alleged act."
44. It is highly reprehensible on the part of the accused to hold PW.2 responsible for his pervert and depraved acts. He has not brought on record even a stray incident to suggest that during his matrimonial life of 13 years either PW.2 or any of her family members had given any harassment to him in whatsoever manner except that he himself was opposing the marriage of his sister-in-law Savitha with Mohan PW.17. His objections to the said marriage cannot be countenanced either in law or on moral 67 grounds. Assuming that he was concerned with the welfare and the wellbeing of his sister-in-law, there was absolutely no reason for him to snuff out the life from her and to murder his mother- in-law and his own innocent and angelic children. The manner in which the accused has sent SMS to PW.2 asking her to commit suicide after committing four murders within 24 hours indicates that the accused even wanted to do away with PW.2 and therefore, in the circumstances of the case, it is PW.2 who needs protection from the accused. The veiled threats given by the accused to PW.2 and the actual threats given by him to the witnesses during trial are indicative of the fact that the accused is incorrigible and cannot be reformed. The material on record indicates that he was determined to carry out his designs by any means even if it was to annihilate his own blood relations and well-wishers. By his acts and conduct, the accused has demonstrated to be a potential threat to PW.2 and other family members of PW.2.
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45. Even though it is argued that in a fit of emotional instability the accused committed the above offences, yet the circumstances reveal that he came to Mangaluru with a pre- determined mind to play mischief with the lives of his children. There was no reason for him to come to Mangaluru but for carrying out his evil designs. He has not explained as to why he came to the house of PW.2 on a working day. Even after his arrival, there was sufficient time for him to change his mind. The circumstances brought out in the evidence indicate that on arrival to Mangaluru, he suddenly arranged to send his mother to her native place against her wish and desire. When his mother declined to leave the house and his plan was foiled, he quickly devised equally nefarious and devilish plan and in furtherance thereto took the children to his native place in a hired taxi and pushed them into a watery grave. The accused had no remorse for his acts instead he was found in a lodge with two whisky bottles.
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46. The accused has not disputed the fact that he has already suffered a conviction under section 302 of Indian Penal Code for murdering his mother-in-law and sister-in-law in the Sessions Court at Tumakuru. The certified copy of the judgment passed by the Fast Track Court, Tumakuru in S.C.No.69 of 2011 is placed on record. The said incident had taken place on the previous day of the incident and within 24 hours therefrom the accused has committed two ghastly murders of his own children.
47. However, placing reliance on the decision in UNION OF INDIA vs. SRIHARAN @ MURUGAN & Others, (2016) 7 SCC 1, a fervent plea has been advanced in a bid to save the accused from gallows. With reference to paras 105 to 106 of the above decision, the learned counsel for the accused would submit that it is permissible for the High Court to impose a modified punishment providing for any specific term of incarceration or till the end of convict's life as an alternative to death penalty. Repeatedly referring to the antecedents and the upbringing of the accused, learned counsel has tried to persuade this court to 70 award a sentence for 20 or 25 years even without remission as has been done in the case of SWAMY SHRADDANANDA @ MURALI MANOHAR MISHRA vs. STATE OF KARNATAKA, (2008) 13 SCC 767; STATE OF UTTAR PRADESH vs. OM PRAKASH, (2015) 4 SCC 467 and TATTU LODHI @ PANCHAM LODHI vs. STATE OF MADHYA PRADESH, AIR 2016 SC 4295.
48. We have given our anxious thought to the submissions of the learned counsel. From the stand point of the accused, the alternate sentence as expounded in the above decisions may save him from the gallows, but it will not give him a new lease of life. In determining the quantum of sentence, no doubt, the "crime" and the "criminal" are the focal points to be borne in mind by the court, but at the same time, the court cannot be oblivious of its duties and obligations towards the victim and the society at large. The alternate sentence limiting to a term in excess of 14 years or 20 years, in our considered view, may be appropriate in new forms of crimes such as organized and professional crimes, abduction for ransom and 71 gang rape, white collared crime etc., when the perpetrators become a menace to the society and the purpose of punishment is to deprive the offenders from enjoying the fruits of their crime and to bring about reformation.
49. But in the instant case, the nature of the offence committed by the accused has to be viewed in juxtaposition or in comparison with other cases of murder of the same or similar kind. Viewed in that manner, in our view, the offence proved against the accused shocks the conscience of the court and qualifies to be a rarest of rare case deserving only death penalty. More than the right of the accused to live for the rest of his life, the cry of the society for just and adequate sentence and the right of the victim to live peacefully without any threats of the accused and to save her from the ignominy of leading the rest of her life as the wife of a condemned prisoner, in our view, should take precedence. Even the Trial Court has noted the frustration and the desperation expressed by PW.2. In the impugned order at page 79, it is noted that after the incident, the father of PW.2 72 went into depression on account of the murder of his wife and daughter and he committed suicide. As a result, PW.2 is left with no one to depend upon. Added to that, she has to bear with the constant threats of the accused and apparently for this reason, PW.2 herself has sought for protection from the accused. These factors, in our opinion, also need to be taken into account while considering the plea put forth by the accused. In this context, it may be useful to refer to the observations in RAJ BALA VS. STATE OF HARYANA & OTHERS (2016) 1 SCC 463, wherein the Hon'ble Supreme Court has observed that, "One cannot remain a total alien to the demand of the socio-cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise 73 the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the 'finest part of fortitude' is destroyed."
50. Thus, on ultimate analysis of all the above facts and circumstances, the gravity and magnitude of the offences committed by the accused, the depraved manner in which he committed four murders including that of his minor children, the utter lack of remorse on the part of the accused, his determination to annihilate almost all the members of the immediate family of PW.2 and the threats issued to her and other prosecution witnesses, keeping in view the safety of PW.2 and the surviving members of her family and also in the larger interest of the society, the Trial Court was justified in awarding death sentence on the accused. We do not find any good reason to commute the death sentence to life imprisonment with or without remission. We do not find any mitigating circumstance warranting commutation or to take any lenient view in the matter. On thorough and careful consideration of the entire 74 material on record and on appraisal of all the attending facts and circumstances as discussed above, we are of the firm view that in the fact situation of the present case, death penalty is the only just and appropriate punishment that requires to be imposed on the accused. The reference made by the Trial Court therefore deserves to be accepted.
For the foregoing reasons, answering the reference as above, we proceed to pass the following:
ORDER
(i) Criminal Appeal No.196 of 2014 filed by the accused is dismissed. The impugned judgment dated 26.11.2013 passed by the V Additional District and Sessions Judge, D.K., Mangaluru, Sitting at Puttur, Dakshina Kannada in Sessions Case No.28 of 2011 convicting the appellant-
accused for the offence under section 302 of Indian Penal Code is confirmed.
75
(ii) Criminal Reference Case No.2 of 2014 is accepted. The death sentence imposed on the accused under the impugned judgment dated 26.11.2013 and the sentence dated 03.12.2013 in Sessions Case No.28 of 2011 on the file of the V Additional District and Sessions Judge, D.K., Mangaluru is hereby confirmed. The sentence shall be executed in accordance with law.
At this stage, learned counsel for the appellant -accused has filed an application under section 415 of Code of Criminal Procedure read with Article 134 of the Constitution of India.
It is submitted that the appellant - accused intends to prefer a Special Leave Petition under Article 136 of the Constitution of India to the Hon'ble Supreme Court of India.
His application is accepted.
76Therefore, the execution of the sentence shall stand postponed for a period of sixty days from today.
SD/- SD/-
JUDGE JUDGE
bss.mn.jj