Karnataka High Court
Praveen Kumar vs State By Mangalore Rural Circle Police on 28 October, 2002
Equivalent citations: 2003(3)KARLJ77
Author: H.N. Narayan
Bench: H.N. Narayan
JUDGMENT
1. The, learned Principal Sessions Judge, Dakshina Kannada, Mangalore, has submitted the proceedings in S.C. No. 64 of 1994 on the file of her Court for confirmation of sentence of death passed by the said Court for the offence of murder punishable under Section 302 of the IPC. Cri, A. No. 1050 of 2002 is filed by the accused who is convicted for the offence punishable under Section 302 read with Section 397 of the IPC and sentenced him to suffer death for the offence of murder. The Division Bench of this Court in its order dated 11-4-2002 directed the Registry of High Court to intimate the convicted accused about the fact of reference through jailer and if he desires to prefer an appeal against conviction and sentence that he is free to do so and if such an appeal is filed either through Advocate or jailer, those proceedings be listed along with the present reference, Thus an appeal is filed under Section 374 of the Cr. P.C. challenging the conviction and sentence passed by the learned Principal Sessions Judge, Dakshina Kannada, Mangalore. Both the matters have been directed to be placed before this Court after paper books were prepared. We have heard the learned Additional Public Prosecutor for the State and Sri Rajendra C. Desai, Advocate for the convicted accused in both these matters.
2. It is the case of the prosecution that the accused Praveen Kumar is the son of deceased Smt. Appi Sherigarthy's brother. Before his marriage, he stayed for about 3 years in the house "Shivakrupa" of Smt. Appi Sherigarthy situated at Vamanjur in Tiruvail Village of Mangalore Taluk. He was a tailor by profession. At that time, he was working both at Vamanjur and Mangalore. After his marriage, he shifted his residence to Uppinangadi, his native place.
3. Smt. Appi Sherigarthy had three sons and three daughters. Her daughter Shakuntala and granddaughter Deepika were staying with her while Shakuntala's husband, P.W. 7-Jayantha G.S. was employed at Muscat. P.W. 8-Sarojini, another daughter of Appi Sherigarthy was living with her husband at Mangalore. One of Sherigarthy's son Govinda was also staying with her. Her house "Shivakrupa" was situated on Mangalore-Karkala road. It is alleged that on the morning of 24-2-1994 P.W. 2-Kum. Revathi, 12 year old girl, who was supplying milk to Smt. Appi Sherigarthy had gone to her house as usual at about 7.30 a.m. to give milk. She called out Appi Sherigarthy, but she received no reply. But she could see Appi Sherigarthy having fallen on the floor with blood by her side. She returned to her house and reported the same to her grandmother. She also went to the house of P.W. 1-Suresh Kumar and informed about the said fact. The mother of P.W. 1 who came to know of this fact directed P.W. 1 to go to the house of the deceased Sherigarthy and verify the fact. P.Ws. 1 and 2 again came to the house of Appi Sherigarthy and called her by her name, but did not get any response. Therefore, they went near the window which was opened towards the northern direction, but they could not see anything. They came back and reported the same to the mother of P.W. 1. At about 10.30 a.m. the mother of P.W. 1 sent P.W. 1 to bring vegetables, she also asked P.W. 2 to go with P.W. 1 to the house of Appi Sherigarthy. Accordingly, both of them went again near the house of Appi Sherigarthy and called out her name again, but they did not get any response. Therefore, they went to the vegetable shop of P.W. 4-Placy Lobo and narrated to her as to what had happened. Then P.W. 4 accompanied by P.Ws. 1 and 2 came near the house of Appi Sherigarthy. They entered the house which had been opened from the southern direction, they first saw deceased Appi Sherigarthy lying dead with bleeding injuries; then they went to another room where they saw Govinda with bleeding injuries; then went to the adjacent room where they saw the dead bodies of Shakuntala and her child with bleeding injuries on their head. Blood had flown on the ground. They all came out of the house, P.W. 4-Placy Lobo sent P.Ws. 1 and 2 to their house, she came back and informed her husband about the same and requested him to inform the police. P.W. 32-Vishwanatha Pandith, the Sub-Inspector of Police, Mangalore Rural Police Station was at Pachanady at about 11 a.m. In connection with investigation of Cr. No. 44 of 1994, he received a wireless message to the effect that four dead bodies were found in the house at Vamdnjur coming within the jurisdiction of Rural Police, Mangalore. He immediately went to the place of incident, he secured P.W. 1-Suresh Kumar and recorded his statement as per Ex. P. 1. On the basis of Ex. P. 1, P.W. 32 got a case registered against an unknown person in Crime No. 46 of 1994 for offences punishable under Sections 449, 302 and 380 of the IPC and submitted FIR to the Court. He sent message to the District Police Office to send dog squad and fingerprint expert immediately to the place of occurrence. In the meantime, he collected the crime number from police station through wireless, held inquest over the dead body of Appi Sherigarthy in the presence of P.W. 9 Chandrahasa Rai and others as per Ex. P. 2 and seized bloodstains in a bottle and bloodstained sari, bloodstained blouse, bloodstained skirt of Appi Sherigarthy which are marked at M.Os. 22 to 25. He thereafter held inquest on the dead body of Shakuntala in the presence of same panchas and drew up inquest panchanama as per Ex. P. 4 and seized M.O. 1 bloodstained wooden reaper, M.O. 31-bloodstained nighty, M.O. 32-bloodstained bram, M.O. 33-sample of blood in a bottle and M.O. 34-two pieces of wood. He then recorded the statements of two witnesses viz., Smt. Indira and Richard Maskarenias. He also directed his colleague, P.W. 29-Gopalakrishna Shetty to hold simultaneously inquest over the dead bodies of Govinda and Deepika along with him and P.W. 29 drew up inquest panchanamas as per Exs. P. 3 and P. 5. He thereafter sent the dead bodies for postmortem examination and then recorded the statements of P.W. 2-Kum. Revathi, P.W. 4-Flasy Lobo, P.W. 5-Albert Lobo and C.W. 8-Ramani and C.W. 10-Seetharama Poojary. In the meantime P.W. 30-K.R. Venkatesh, Fingerprint Expert, Mangalore, came to the spot. P.W. 32 requested him to take chance prints of the culprits, if any, from the spot. P.W. 30 examined the showcase glass, two almirahs, one cash tin box, two suitcases and one scent bottle box and yardly powder box. He noticed two chance fingerprints on one of the almirahs that was in the room. He lifted the two chance prints that were found on the almirah on two glass pieces which are marked at Exs. P. 25 and P. 26. He also got admitted fingerprints of the accused, examined them and issued a certificate as per Ex, P. 27. On the next day viz., 25-2-1994, the Circle Inspector of Police, P.W. 33-J. Papaiah took over further investigation of this case from P.W. 32. P.W. 33 visited Wenlock Hospital, Mangalore, where the dead bodies were sent for post-mortem examination, he came to the place of occurrence situate at Vamanjur, questioned the witnesses who were already examined by P.W. 32. He examined and recorded the statements of P.W. 3-Prema N. Shetty, P.W. 6-Seetharam D. Gurpur, P.W. 8-Sarojini and other witnesses on 27-2-1994. During the course of investigation, it revealed that the accused was visiting the house of the deceased. On the next day, he recorded the statement of P.W. 7-Jayantha and others. He deputed his staff and apprehended the accused. The accused was produced by P.W, 31 before P.W. 33 on 2-3 1994 at 10.30 p.m. He interrogated him and recorded his voluntary statement, the admissible portion of which is marked at Ex. P. 35. On the next day, he secured P.W. 10-Dr. Sathish Mallya and. two others. On the information furnished by the accused, they went in a vehicle to Uppinangadi. On the way they took another panch, P.W. 12-B. Rama Bhat. On reaching Uppinangadi, the accused led them to his house and then took them near a bamboo bush located in a hillock viz., the areca garden belonging to his father. The accused then went near a bush and took out a bundle tied in a kerchief and opened the same. On opening the bundle, the accused produced M.Os. 2 to 17 which were recovered by the I.O. under the panchanama Ex. P. 6. M.Os. 19 and 21 were also recovered under panchanama Ex. P. 6, M.Os. 42, 43 and 44 were recovered under panchanama Ex. P. 7, M.Os. 18, 45 and 46 under panchanama Ex. P. 8, M.O. 47-sickle under panchanama Ex. P. 11, M.Os. 48 and 49 under panchanama Ex. P. 12. He also seized M.Os. 50 to 55 from the shop of P.W. 25 under panchanama Ex. 16. He also seized a cheque under panchanama Ex. P. 9. After completing the formalities of investigation, on receipt of post-mortem report, the report of the fingerprint expert and FSL report, submitted final report before the jurisdictional Court for the offences punishable under Sections 302 and 392 of the IPC.
3-A. The accused entered his appearance through his Advocate, he was charged for the offences punishable under Sections 302 and 392 read with Section 397 of the IPC. Since the accused denied the charges framed against him and in proof of the said charges, the prosecution examined as many as 33 witnesses and got marked 38 documents and 55 material objects. The contradictions elicited during the course of cross-examination are got marked at Exs. D. 1 to D. 4. The accused was also examined as required under Section 313 of the Cr. P.C. with reference to the incriminating evidence which appeared against him. The accused had denied the truth of the prosecution evidence. As it was not a case of acquittal under Section 232 of the Cr. P.C., the accused was called upon to enter his defence. But, the accused had not chosen to lead any evidence on his behalf. The learned Trial Judge thereafter heard the arguments of the Public Prosecutor for the State and the learned Counsel for the accused and recorded a finding of guilt of murder against him.
4. To substantiate the charges against the accused, the prosecution essentially rests its case on the circumstantial evidence. The prosecution has relied on the following circumstances to link the accused with the alleged offences. They are:
(a) Relationship between the deceased and the accused;
(b) Motive;
(c) Homicidal death of the deceased;
(d) Possession of valuable ornaments and gold by the deceased Appi Sherigarthy and her daughter Shakuntala;
(e) Recovery of stolen gold ornaments, cash, bloodstained shirt at the instance of the accused; the weapons used for commission of the offence;
(f) Presence of accused within the vicinity of scene of occurrence and conduct of the accused before and after commission of the offence;
(g) Presence of fingerprints of the accused at the spot; (h) Non-explanation of incriminating circumstances that appeared against the accused.
5. The Trial Judge on scrutiny of the evidence placed by the prosecution, fortified her views from the reported judgments of the Apex Court and this Court and passed the impugned judgment of conviction and sentence against the accused.
6. We heard the arguments of Sri B.C. Muddappa, learned Additional State Public Prosecutor for the State and Mr. Rajendra C. Desai for the accused-appellant. The submissions of the learned Counsel for the accused are two-fold. It is contended at the first instance that the circumstances relied upon by the prosecution are insufficient in proof of the guilt of the accused and that those circumstances have not been proved satisfactorily to bring home the guilt of the accused. His second submission is that the sentence of capital punishment is not commensurate with the gravity of the offence alleged against him and that the facts placed before the Court do not make out this case as one of the rarest of rare cases and therefore, the judgment of the Trial Court is liable to be reversed on both counts.
7. The learned Additional State Public Prosecutor while justifying the conviction and sentence recorded by the Trial Judge submitted that there are too many circumstances relied on by the prosecution to prove the guilt of the accused and those circumstances are fully established and the circumstances so proved are conclusive in nature and there is no escape for the accused. Having regard to the nature of the offence committed by the accused in murdering four innocent persons for gain even the gravity of the situation makes it, one of the rarest of the rare cases and the Trial Judge is right in ordering severest sentence provided for the offence of murder and therefore, there are no good grounds for this Court to disturb the judgment delivered by the Trial Court.
8. In the light of the contentions canvassed before us and the findings of the learned Trial Judge, the following points would arise for our consideration:
1. Whether the judgment of conviction recorded by the Trial Judge is not sustainable in law?
2. If so, whether the capital punishment imposed by the Trial Judge is not just and reasonable?
9. The accused is charged for murder of Appi Sherigarthy, her son Govinda, her daughter Shakuntala and her granddaughter Deepika on the intervening night of 23/24-2-1994 in the house of deceased Appi Sherigarthy situate at Vamanjur in Tiruvail Village of Mangalore Taluk, committed robbery of gold ornaments, silver articles, wrist watches and cash of Rs. 7,600/- belonging to the deceased Shakuntala. Hence, it is the case of the prosecution that the murder and robbery are integral parts of one and the same transaction and the stolen properties have been recovered from the possession of the accused. It is undisputed that there is no direct evidence in proof of the guilt of the accused. The prosecution depended entirely upon the circumstantial evidence. The Trial Court has relied on eight circumstances in proof of the guilt of the accused. P.Ws. 22 and 23 are the two post-mortem doctors who are examined to prove the homicidal death of Smt. Appi Sherigarthy, her son Govinda, her daughter Shankuntala and granddaughter Deepika. The prosecution has also relied on the evidence of P.W. 6-Seetharam, P.W. 7-Jayantha arid P.W. 8-Sarojini, blood relatives of the deceased to prove the relationship of the accused with the deceased and also to identify the gold and other articles which belonged to the family of the deceased. P.Ws. 9 to 12, 14 and 21 are the attestors of various seizure mahazars and P.Ws. 13 and 25 were the receivers of the stolen properties. The prosecution has also relied on the evidence of P.W. 16-Bavu to prove the movements of the accused on the date of incident. P.Ws. 19, 20 and 25 are the jewellers and financiers with whom the accused had transactions prior to the occurrence, P.W. 30 is the fingerprint expert. P.Ws. 24, 26 to 29 and 31 to 33 are the Police Officers. We now deal with those 8 circumstances relied upon by the prosecution.
10. Re: Homicidal death of the deceased persons.--It is the specific case of the prosecution that all the four victims in this case viz., Appi Sherigarthy, Govinda, Shakuntala and Deepika died homicidal death on the intervening night of 23/24-2-1994 in the house of Appi Sherigarthy "Shivakrupa". It is undisputed that they were all found dead on the morning of 24-2-1994. It is not the case of the defence that these persons died prior to the evening of 23-2-1994. P.Ws. 1 to 4 are the persons who first saw the dead bodies on the morning of 24-2-1994. The post-mortem reports Exs. P. 17, 18, 20 and 21, the evidence of P.Ws. 22 and 23, the two post-mortem doctors coupled with the recitals in inquest panchanamas Exs. P. 2 to P. 5 are sufficient to prove the homicidal death of these four persons. P.W. 22 who conducted post-mortem examination on the dead body of Appi Sherigarthy noticed the following external injuries:
(1) a lacerated wound situated on the left frontal area 1" behind the hairline measuring 3" in length into scalp deep;
(2) a punctured wound situated at the lateral end of left eyebrow measuring 1/4" x 1/2" in deep;
(3) blackening of the left eye; (4) another punctured wound situated on the right side of the forehead 1" anterior to the hairline measuring 1/4" x 1/2" deep.
P.W. 2 who has also conducted post-mortem examination on the dead body of Govinda noticed the following external injuries:
(1) a punctured wound situated on the left temporal region measuring 1/2" x 1/4" x 1/4";
(2) blackening of the left eye.
She also noticed that the injuries found on the dead bodies were ante-mortem and those injuries could be caused by weapons like M.O. 47-sickle, M.O. 1-wooden reaper. P.W. 23-Dr. U. Geetha Bai who conducted post-mortem on the dead body of Shakuntala noticed as many as 5 lacerated injuries over the middle of the forehead, frontal area, occipital area and an abrasion on the left side of inter scapular area and a punctured wound on the left temporal region. There were also abrasions on the left cheek, upper lip and chin. Similar lacerated injuries were noticed by her on the dead body of Deepika on the forehead and parietal region and other parts of the body. The doctor has also opined that these injuries found on the dead bodies were ante-mortem and that those injuries could be caused by weapons like M.Os. 1 and 47. The doctors have also specified the approximate time of death which relates back to the intervening night of 23/24-2-1994. Insofar as homicidal death of these four persons, the learned Counsel for the accused offered no argument at all. From the scrutiny of this evidence, we are of the opinion that all the four persons viz., Appi Sherigarthy, Govinda, Shakuntala and Deepika died a homicidal death on the intervening night of 23/24-2-1994. The learned Trial Judge has made detailed discussion of the medical evidence in this regard. We fully concur with the opinion of the learned Trial Judge and affirm the same.
11. Re: Relationship and acquaintance of the accused with the family of the deceased.--There appears to be no doubt regarding this circumstance. P.W. 6-Seetharam D. Gurpur, son of Appi Sherigarthy, P.W. 8-Sarojini, daughter of Appi Sherigarthy have spoken to the relationship of the accused with Appi Sherigarthy and it is their say that the accused is none other than the son of Appi Sherigarth/s brother and that his father is a resident of Uppinangadi. The evidence of P.W. 6 and P.W. 8-Sarojini shows that about 3 years prior to his marriage, somewhere in 1991 or 1992, the accused was carrying on tailoring work in her parents' house at Vamanjur and he was also doing tailoring work at Mangalore. During that time he used to stay in the house of Appi Sherigarthy and after his marriage, he went to Uppinangadi and was residing with his parents. However, he used to visit her parental house at Vamanjur. P.W. 3-Prema N. Shetty, a neighbour of Appi Sherigarthy and a friend of deceased Shakuntala has also spoken to this aspect. P.W. 3 used to visit the house of Shakuntala as her daughter Mamatha was the classmate of deceased Deepika. Both of them were studying at Sacred Heart School situate at Kulashekara. P.W. 3 has also spoken to the visits of accused to the house of Appi Sherigarthy and often he used to stitch the blouses of P.W. 3-Prema N. Shetty and deceased Shakuntala. We have carefully examined the evidence of P.Ws. 6, 8 and 3 in relation to his relationship with the deceased. While answering question Nos. 47, 48, 49 and 53, in his 313 statement the accused has admitted that he is the son of Shakuntala's maternal uncle and he was a tailor by profession and that he was carrying on tailoring profession at Mangalore and that he hails from Uppinangadi. He has also admitted the relationship of P.W. 6-Seetharam with the deceased persons and that the deceased was residing at Shivakrupa and that the husband of deceased Shakuntala was living at Muscat and his relationship with the deceased Shankuntala. He has also stated while answering question Nos. 140 and 141 that his marriage was performed in the year 1990 and before his marriage he was doing tailoring work at Mangalore. However, he has denied that he was doing tailoring work at Vamanjur before his marriage. Hence, the prosecution has established the relationship of the accused with the deceased and that the accused is none other than the brother's son of deceased Appi Sherigarthy.
12. Re: Motive.--The motive for the commission of the offence, according to the prosecution, is for gain. The prosecution has placed some evidence to show that the accused had incurred debts; that he was in dire need of money, that he was aware that deceased Shakuntala and Appi Sherigarthy possessed valuable ornaments. Hence, he hatched a plan to rob the jewellery and cash, if any, by doing away with the lives of the inmates of the house. Whether he has executed this idea originated in his mind can only be inferred from the evidence of recovery witnesses and the I.O. who recovered certain gold ornaments on the voluntary statement allegedly made by the accused. Whether the recovery evidence is reliable, truthful will be considered at a later stage. Suffice it to say that the evidence on record shows that ho had this motive viz., to rob the gold ornaments and cash from the house of deceased Appi Sherigarthy to make his miserable life more happy and prosperous. We are satisfied with the evidence placed by the prosecution in proof of this circumstance. This is not a case where there was no motive at all for the accused to commit the offence. We have probed the surrounding circumstances to find out whether the accused has any motive to resort to this ghastly murders. Therefore, we hold that the prosecution has proved this circumstance.
13. Possession of valuable ornaments and cash by deceased Shakuntala and others.--It is the case of the prosecution that the family of deceased Appi Sherigarthy possessed valuable ornaments and cash and that the deceased knew about the same personally. There is no dearth of evidence in proof of this circumstance. The evidence of P.W. 8-Sarojini shows that her brother-in-law P.W. 7-Jayantha G.S., husband of deceased Shakuntala visited his wife and daughter about a month prior to the date of incident. On 26-1-1994 he performed the birthday of deceased Deepika and P.W. 3-Prema N. Shetty herself and other relatives attended the birthday party which was celebrated in the house of Appi Sherigarthy. P.W. 7 had brought 3 gold bangles to his wife Shakuntala and 2 gold bangles to his daughter Deepika and also a Titan watch to his wife and a pair of jumki and a wrist watch to his daughter. Apart from these ornaments presented on the birthday of Deepika, Shakuntala and her child had possessed other gold ornaments. P.W. 8-Sarojini has given a list of ornaments possessed by her sister which is as follows:
(1) Mangalasuthra with black beeds having "Om" symbol in the center of the thali;
(2) Kanakamala with Lakshmi pendent studded with red stones surrounded by white pearls;
(3) A pair of gold ear studs studded with white stones;
(4) A gold finger ring with leaf design;
(5) A pair of gold bangles with design;
(6) A pair of rolled gold bangles;
(7) A watch with red belt.
Deepika had following jewels according to P.W. 8:
(1) One disco chain;
(2) A pair of ear jumki;
(3) A pair of silver ankle chain;
(4) A gold tikki.
P.W. 3-Prema N. Shetty, friend and close associate of deceased Shakuntala has also given the details of gold ornaments of Shakuntala and Deepika and also the watches which were presented to them at the time of birthday ceremony to Deepika by her father. P.W. 7-Jayantha G.S., husband of deceased Shakuntala has also spoken to this fact. It is also stated that when he left Mangalore to Muscat on 14-2-1994, roughly 10 days prior to the date of incident, he had given the cash of Rs. 3,000/-to his wife Shakuntala. These items of gold ornaments and watches which were subsequently recovered during the course of investigation by the I.O. P.W. 33-Papayya have been identified by these witnesses. The evidence of P.W. 4-Flacy Lobo and P.W, 9-Chandrahasa Rai, the inquest witnesses and the evidence of P.W. 32-Vishwanatha Pandit, S.I. of Police who visited the place of incident on the said afternoon noticed breaking open of the almirah, opening of suitcase, scattering of cloths and absence of gold jewellery and cash which were subsequently recovered at the time of investigation, as spoken to by P.W. 33 in particular, supported by the attestors of various recovery mahazars, substantially establish the circumstance that the family of Appi Sherigarthy possessed valuable gold ornaments and also the cash, P.W. 6-Seetharam who is the son of deceased Appi Sherigarthy who was wording at Zambia came down to Mangalore after learning this incident. His evidence shows that till 24-2-1994 there was no telephone connection in his family house viz., Shivakrupa. At the request of his sister Shakuntala, he sent an amount of Rs. 5,000/- by cheque to her enabling" her to get the telephone connection to her house. His further evidence shows that Shakuntala got this cheque encashed through her brother Govinda only a few days prior to the date of incident and kept the cash in the house. P.W. 6 has also spoken about the Kanakamala, M.O. 3 which was presented to Shakuntala during her marriage by his father, which was one of the valuable gold ornaments, which had been recovered at the instance of the accused. The question whether these ornaments, M.Os. 2 to 14, 18 and 19 and 3 watches, M.Os. 15 to 17 belonged to the deceased or not will be taken up at a later stage. Suffice it to say that these ornaments belonged to the family of Appi Sherigarthy and that the accused has not claimed those ornaments nor had he any occasion to claim ownership to these ornaments. The evidence of P.W. 8-Sarojini in proof of this circumstance is difficult to accept in view of her admission in cross-examination that she does not know the gold ornaments and the articles that are possessed by her sister Indira and her daughters. Her mother Appi Sherigarthy did not possess any gold ornaments. In the light of this evidence of P.W. 8 that she was not aware of gold ornaments of her elder sister, but she was able to tell the ornaments of her other sister Shakuntala, creates certain uncertainty in the mind of the Court of her knowledge of gold and other ornaments which were in possession of her sister Shakuntala and her daughter. But P.W. 6-Seetharam specifically mentions Kanakamala M.O. 3 which was given to the deceased Shakuntala by her father at the time of her marriage. According to him he had brought gold from abroad as he was in Zambia and handed over the same to his father who got prepared Kanakamala, to her sister Shakuntala at the time of her marriage. It is also stated by him that his father got it prepared for his sister Shakuntala by a goldsmith. He has also stated that the said Kanakamala has got a pendent with an emblem Lakshmi. He has identified M.O. 3-Kanakamala which was presented to his sister. There is not much cross-examination on this question and this evidence of P.W. 6 has not been assailed in cross-examination. We have no reason to disbelieve that part of the evidence. P.W. 6 has also stated that there was no telephone connection to their family house at Vamanjur till 24-2-1994. Therefore, his sister Shakuntala requested him to send a sum of Rs. 5,000/- through cheque" to enable her to get a telephone connection to her house. Accordingly, he sent Rs. 5,000/- by cheque about 20 days prior to the date of incident. The fact that this cheque sent by P.W. 6 got encashed by presenting it to the Syndicate Bank branch, is spoken to by P.W. 11-Vinayak V. Kamath who was wording as Branch Manager, Syndicate Bank at that time. P.W. 11 knew P.W. 6-Seetharam D. Gurpur as he had NRE S.B. Account in their branch at Gurupur and that the said Seetharam had issued a cheque for Rs. 5,000/- to his NRE S.B. Account 22 drawn in the name of Shakuntala and one Govinda Sapaliga presented the said cheque on 23-2-1994 and encashed it and he had furnished this cheque to the Mangalore Rural Police who came and seized the same for reference in this criminal case. The suggestion made to this witness that P.W. 6-Seetharam was not holding NRE account in the said Syndicate Bank is denied by him. P.W. 7-Jayantha G.S., husband of deceased Shakuntala and father of deceased Deepika is a person who knows more about the ornaments of his wife and daughter who married Shakuntala in the year 1984 during which time he was working at Bombay. Shakuntala joined her husband in Bombay during 1984 and stayed with her husband till 1988 till the marriage of P.W. 8-Sarojini whose marriage was performed in 1988 and she left Vamanjur to join her husband at Kutharu. Since there was nobody to look after Appi Sherigarthy who was in her old age, Shakuntala came to Vamanjur to stay with her mother during which period Shankuntala's husband Jayantha left to Muscat. P.W. 7 has also spoken to the gold ornaments of his wife presented by her parents. They were Mangalasutra, Kanakamala, two gold bangles and a pair of ear stud. He also brought her a pair of ear studs and gold finger ring. He used to come to see his wife and daughter once in two years after he went to Muscat. They used to perform the birthday of his daughter Deepika every year. Accordingly, they celebrated the birthday of Deepika on 26-1-1994. He came to attend the birthday ceremony of his daughter. He stayed at Mangalore for about two months and they celebrated birthday of Deepika in his mother-in-law's house "Shivakrupa" at Vamanjur. On this occassion he had brought 3 gold bangles to his wife, 2 gold bangles to his daughter Deepika. He had also brought a Titan Royal watch to his wife and another watch with a black belt to his daughter. His daughter Deepika who was 10 years old was studying at that time in Sacred Heart School. He had also brought a pair of ear jumki to his daughter. All the above jewels and watches had been worn by his wife and daughter on the birthday party. His wife and daughter invited her friends viz., P.W. 3-Prema N. Shetty, C.W. 4-Nirmala, C.W. 5-Shashiprabha and others. C.W. 15-Sarojini was also present on that occasion. He left Mangalore to Muscat on 14-2-1994, P.W. 7 has also stated that during December 1993 when he had come to Mangalore to call on his wife and daughter, he had also brought Disco chain to his daughter Deepika from Muscat. Apart from that, during one of his visits himself and his wife had purchased a pair of silver ankle chains to his daughter. In addition, his wife had also purchased a pair of ear jumki to his daughter during his stay at Muscat. He had also brought lady's wester watch to his wife from Muscat and given to her during one of his visits. On the date of his leaving to Muscat he had given a cash of Rs. 3,000/- to his wife Shakuntala. He came to know of the incident on 24-2-1994 and he came to Mangalore on 27-2-1994 and when he was at Vamanjur on 4-3-1994 the police came to the said house along with the accused at 5 p.m. Apart from himself, P.W. 3, his brother-in-law P.W. 6, C.W. 17, C.W. 19 and others, his sister-in-law Sarojini who were present identified the gold ornaments brought by the I.O. for the purpose of investigation. He identified M.Os. 2 to 19 as the ornaments and watches belonging to his wife and daughter. Nothing much is elicited in cross-examination to disbelieve the evidence of P.W. 7. He has denied the suggestion that the ornaments and watches of the type M.Os. 2 to 19 are available in the market. He has denied the suggestion that he has deposed falsely and that those ornaments did not belong to his wife and daughter. In our opinion, P.W. 3-Prema N. Shetty, the close friend of deceased Shakuntala and P.W. 7, the husband of deceased Shakuntala are the best witnesses to speak about gold and other articles belonging to the deceased Shakuntala and her daughter. Since their evidence also show that P.W. 8-Sarojini has also attended the birthday party of Deepika, the evidence of P.W. 8 can be relied to that extent. This evidence of P.Ws. 3, 6 and 7 go to prove that deceased Shakuntala possessed not only the gold ornaments and other articles like watches and silver anklets but also possessed some cash on the date of incident.
14. Recovery of stolen gold ornaments belonging to deceased Shakuntala and her daughter, cash, bloodstained shirt at the instance of the accused, the weapons used for commission of the offence.--The very important circumstance relied on by the prosecution is recovery of stolen gold ornaments, cash, bloodstained shirt of the accused and weapon used for the commission of offence at the instance of the accused. The evidence of P.W. 33-J. Papaiah, Circle Inspector of Police discloses that during the course of investigation, it revealed to him that the accused was visiting the house of the deceased. He thereafter visited Vamanjur and recorded the statements of P.W. 7-Jayantha G.S. and others and thereafter deputed his staff to trace the accused Praveen Kumar in this case who is none other than the son of deceased Appi Sherigarthy's younger brother. The accused was produced before P.W. 33 on 2-3-1994 at about 10.30 p.m. in Mangalore Rural Police Station; he arrested and interrogated him and recorded his statement, the admissible portion of which is marked at Ex. P. 35. Under Ex. P. 35, the accused has stated before the I.O. that he would produce the gold jewellery, a sickle, one whisky bottle, a screwdriver, a shirt and also the receipts of Finance Companies at Uppinangadi and Mangalore if taken to this place.
15. On the next day morning P.W. 33 secured P.W. 10-Dr. Sathish Mallya, C.W. 25-K. Mohandas Shetty and C.W. 28-B.A. Pinto to the Police Station. Then the accused took the police and panchas to Uppinangadi in the police vehicle, on the way the Inspector took P.W. 12-B. Kama Bhat to act as panch. Initially the accused took them to his house from where he led them near a bamboo bush located in a hillock viz., the areca garden belonging to his father. The accused took out a bundle tied in a handkerchief from the said bush and opened the same and on opening the hurdle they found M.Os. 2 to 17 and 19, the gold ornaments and also M.O. 21, the box in which the gold ornaments were kept, M.Os. 15 to 17, the watches which were kept separately in the bundle. P.W. 33 seized them and prepared a panchanama as in Ex. P. 6 in the presence of P.Ws. 10, 12 and others. Thereafter, the accused led them to his house where he produced M.Os. 42 to 44, currency notes totalling Rs. 2,400/-, black vanity bag, full sleeves shirt of the accused respectively. The Circle Inspector seized them under Ex. P. 7 in the presence of the same panchas. Thereafter, according to the prosecution the accused took the I.O. and the panchas to the shop of P.W. 13-Govinda Bhat situate at Uppinangadi. P.W. 13 identified the accused and produced M.O. 18-gold disco chain. M.O. 45-three chits, M.O. 46-bond paper. They were seized under panchanama Ex. P. 8. The seized articles were subjected to Property Forms 42, 43 and 44 of 1994 and thereafter the sample fingerprints of the accused as per Ex. P. 8 was taken at the police station. The I.O. produced the accused before the Jurisdictional Magistrate and obtained police remand for a period of three days.
16. On 4-3-1994 the accused allegedly took the I.O. to Vamanjur where P.W. 14-Bavu, C.W. 29-Venkatesh Baliga were secured to act as panchas. The accused took them behind the house of one Albert Lobo to a place called Kalpane and there he took them to a laterite stone quarry and from there he produced M.O. 47, the sickle. The I.O. seized M.O. 47 under panchanama Ex. P. 11 in the presence of P.W. 14-Bavu and another. The accused thereafter took them near the house of Appi Sherigarthy and brought out an empty whisky bottle concealed beneath the banana plant. He also brought a screwdriver, M.O. 49 which was lying inside the house. He seized them under panchanama Ex. P. 12. The I.O. thereafter secured P.W. 15-Shivananda Acharya, a goldsmith and he got tested M.Os. 2 to 4, 6 to 13, 18, 19, 5 and 14 who certified that they were all gold jewels. Thereafter he secured P.W. 3-Prema Shetty, P.W. 8-Saro-jini, P.W. 7-Jayantha and others for the purpose of identification. They identified all those ornaments and watches and thereafter the I.O. recorded their further statements. The properties were subjected to Property Forms 45 and 46 of 1994. On the next day i.e., on 5-3-1994 the accused again led the Inspector to the shop of P.W. 25-Ballukuraya situated at Central Market, Mangalore. The I.O. secured P.W. 21 to act as pancha. P.W. 25 identified the accused and produced M.Os. 50 to 55, cash of Rs. 6,315/-, ledger extract, debit voucher with loan papers, pawn tickets and two receipts respectively. They were seized under panchanama Ex. P. 16. The seized articles were subjected to Property Form 47 of 1994. The accused was remanded to judicial custody on the next day.
17. In proof of the recovery of these M.Os., the prosecution has not only relied on the evidence of I.O. P.W. 33-J. Papaiah, but relied on the attestors of the respective panchanamas. P.W. 10-Dr. Sathish Mallya, P.W. 12-B. Kama Bhat, the attestors of Ex. P. 6 have spoken to the seizure of M.Os. 2 to 17, 19 and 21. They have also spoken to the nature of ornaments seized under Ex. P. 6 on 3-3-1994. P.W. 10-Dr. Sathish Mallya is a resident of Vamanjur, a respectable man, a private medical practitioner. He had no connection or relationship with the deceased persons. P.W. 12-B. Rama Bhat was picked up on random when the I.O. was proceeding towards the house of the accused. Both are respectable citizens and disinterested too. They have fully supported the seizure of M.Os. 2 to 17, 19 and 21. We have thoroughly scrutinised their evidence and we hardly find any material to discard their evidence.
18. Insofar as the seizure of M.Os. 42 to 44 are concerned from the house of the accused, it is argued by the learned Counsel for the accused that the house was not in exclusive custody of the accused as the evidence revealed that parents of the accused were in occupation of the said house. But it is not the case of the accused that M.Os. 42 to 44 belonged to the family of the accused or any one of the family members of the accused claimed as belonging to them. The seizure of M.O. 18, gold disco chain, which is very often spoken to by the witnesses examined on behalf of the prosecution and three chits and bond papers, M.Os. 45 and 46 have been spoken to by P.Ws. 10, 12 and 13 also. P.W. 13 was an agriculturist in Uppinangadi. According to him he was a proprietor of Rathnagiri Finance situated at Uppinangadi and according to him he was running the same since 1987 and the financier used to advance loans after getting the gold pledged. This witness has identified the accused as he comes from the same locality and according to him on 28-2-1994 the accused had come to his shop, pledged gold chain, M.O. 18 and took a loan of Rs. 2,000/- and he had taken a bond to that effect. He mentioned the description of the gold ornaments pledged in the said bond, the weight of the gold ornament, its value and the loan advanced and he had also taken the signature of the accused to the bond. He has also spoken to the fact of issue of a token in respect of the same wherein he mentioned the token No. as JL which means Jewel Loan Number. He has also maintained the token in the finance along with the gold chain pledged. He has also spoken to the recovery of gold chain, chits and bond on 3-3-1994 while I.O. P.W. 33 came to their shop in the company of the accused. P.W. 13 has fully supported the recovery of M.Os. 18, 45 and 46 which is corroborated by P.Ws. 10 and 12.
19. Insofar as the seizure of M.O. 47-sickle is concerned, P.W. 4-Bavu has supported the I.O., as also the seizure of M.Os. 48 and 49 empty whisky bottle and screwdriver. It was contended before us that the recovery of M.O. 48-empty whisky bottle and M.O. 49-screwdriver from the house of the deceased are not at all incriminating as both of them could have been recovered by the I.O. if he had only made thorough search of the place of incident.
20. The screwdriver lying in the house of the deceased was considered as not an incriminating material at all during the course of inquest and spot panchanama, but assume some importance after the thorough investigation of this case in the manner in which the accused created certain defence by removing the bolt and screws of the southern door of the house so as to create an impression that some dacoits must have broke open the door and committed dacoity. The seizure of empty whisky bottle also shows that the accused before committing the heinous crime, consumed a quarter bottle of whisky. It is in this background the seizure of these two articles has some relevance.
21. P.W. 25-K.M. Ballukuraya was running a Finance Corporation during 1994 under the name and style of Sangam Finance Corporation at Market Building in Mangalore. He used to advance loans against pledging gold and also on payment of interest. This witness has also identified the accused and according to him the accused used to visit his Finance Corporation for purchases. He had visited the Corporation for about 4 or 5 times and has taken loan after pledging gold. He has spoken to the fact of accused pledging gold ear stud and chain and had taken a loan of Rs. 1,000/- and Rs. 5,000/- as against both the articles and that the accused had discharged the same on 25-2-1994 after paying the loan amount. The accused, according to him, had paid an amount of Rs. 6,315/- and got the loan discharged and he had taken a receipt from the accused. The cash of Rs. 6,315/- paid by the accused, the two receipts M.O. 55, the ledger extract M.O. 51, debit voucher with loan papers M.Os. 52 and 53 and pawn tickets M.O. 54 were produced by P.W. 25 which were seized by the I.O. under panchanama Ex. P. 16. P.W. 21-Ramachandra Shetty, a tailor has attested the mahazar. He has fully supported the seizure of M.Os. 50 to 55 under Ex. P. 16. All the witnesses examined for recovery of these M.Os. stated above, are disinterest witnesses. P.Ws. 13 and 25 are business people. They maintained accounts and other records recovered by the I.O. in the regular course of business and from the careful scrutiny of these documents, go to show that they are not concocted documents for the purpose of this case as contended by the accused as they were maintained in the regular course of business.
22. Insofar as the evidentiary value of seizure of M.O. 44, the shirt which was recovered from the house of the accused at his instance was found stained with blood. The same has been submitted to Chemical Examiner, Bangalore, for its examination and report and the serology report Ex. P. 37 shows that M.O. 42 was stained with human blood. The prosecution however has failed to further probe whether the human blood found on M.O. 44 was that of the deceased persons. According to the Chemical Examiner, the stains found on M.O. 44 was not sufficient to correctly give the group of human blood. But the fact that the bloodstained shirt of the accused was found in his house is a circumstance which incriminates him in the commission of offence. It is for that limited purpose that recovery of M.O. 44 can be relied upon.
23. When the accused was questioned with reference to this recovery evidence, he had no explanation to offer except to deny the truth of the prosecution evidence. We have noticed with certainty that recovery evidence produced before the Court stood the test of scrutiny and the evidence has not given rise to any suspicion in this regard. This evidence placed by the prosecution clearly shows that the accused was found in possession of the gold ornaments and other articles which belonged to the deceased immediately after the occurrence. A presumption arises under illustration (a) to Section 114 of the Indian Evidence Act. Though it is a rebuttal presumption, the accused has failed to rebut this presumption.
24. Apart from relying upon this important piece of circumstance in proof of the guilt of the accused, the prosecution has also relied upon the other circumstances viz., the presence of fingerprints of the accused at the spot, the movement of the accused on the next day morning at Mangalore Town and in his village and abscondence thereafter till he was arrested within a week after the date of incident.
25. Re: Presence of fingerprints of the accused at the spot.--
P.W. 30-Venkatesh was the Police Inspector and Fingerprint Expert at Fingerprint Unit, Mangalore. A message was sent to him which was received by him at about 12.30 p.m. on 24-2-1994 and on the request of the police, he visited the scene of offence. According to him, on reaching the spot, he examined the place of occurrence carefully and had examined the showcase glasses, two almirahs, one cash tin box, two suitcases, one scent bottle box and yardly powder box. On examining these articles, he noticed two chance fingerprints on one of the almirahs that was in the room. He lifted the two chance prints that were found on the almirah on two glass pieces which are marked at Exs. P. 25 and P. 26. He issued a certificate of scene of crime as per Ex. P. 27. On 6-4-1994 he received sample admitted fingerprints taken on a slip by the Circle Inspector of Police, Mangalore Rural Circle, Mangalore, of one Praveen Kumar, son of Ramakrishna Sapaliga, the accused and compared the admitted fingerprints with Q1 and Q2 which were the chance fingerprints taken by him on 24-2-1994 and found that the chance fingerprint marked as Q1 by him was identical with that of left hand thumb fingerprint marked as A1 by him which was the fingerprint of the accused. According to him the other chance fingerprint Q2 was found unfit for comparison as it did not disclose sufficient ridge characteristics. He issued a certificate Ex. P. 33 furnishing his opinion. Except denying his visit to the place of incident taking chance fingerprints and examining them with the admitted fingerprints, the defence has failed to bring out any material to reject his evidence. In our opinion the evidence of P.W. 30 and the opinion furnished by him fully supports the prosecution theory proving the presence of the accused and handing the almirahs for the purpose of robbing gold ornaments kept in the almirahs. This circumstance also satisfactorily prove the presence of the accused in the house of deceased Appi Sherigarthy on the intervening night of 23/24-2-1994. The Apex Court in Jaspal Singh v State of Punjab, AIR 1979 SC 1708 : 1979 Cri. L.J. 1386 (SC) observed in this regard as follows:
"Science of identifying thumb impression is an exact science and does not admit of any mistake or doubt".
The Trial Judge has rightly relied upon the judgment of the Apex Court and accepted the evidence of P.W. 30.
26. Re: Presence of the accused within the vicinity of scene of occurrence and conduct of accused before and after the commission of offence.--So far as the movement of the accused immediately before and after the occurrence within the vicinity of the scene of occurrence, reliance is placed by the prosecution to the evidence of P.W. 16-Bavu and also P.W. 19-Monohara Chilimbi. According to P.W. 16, the accused and deceased Govinda came to his shop a day prior to the date of incident in the night and has purchased pan from his shop. He knew the accused since 2 or 3 years prior to the date of incident. He has also spokon to the fact that the accused was brought to his shop after a lapse of ten days and he identified him. The fact that the accused visited the shop of P.W. 16 who had purchased pan at about 8.30 p.m. a day prior to the date of incident (it is virtually on the night of incident) is not challenged in cross-examination. The only discrepancy pointed out in the cross-examination of this witness is that he did not state before the police that deceased Govinda accompanied the accused to his shop. This omission pointed out by the accused in the evidence of P.W. 16-Bavu has not at all affected the credibility of his evidence as the visit of the accused to his shop at 8.30 p.m. on that day is proved.
27. It is the case of the prosecution that on the morning of 24-2-1994 that the accused had come to the house of P.W. 19 at about 7.30 a.m. who was looking tired and exhausted and when questioned, the accused told P.W. 19 that he did not have proper sleep in the night, thereafter he left his house. P.W. 19 has also spoken to of his visit on the previous evening viz., on the evening of 23-2-1994 at about 5 p.m. According to him he had taken some clothes and he wanted to give them for stitching. When the accused visited him on the evening he asked the accused to take the clothes, but the accused told him that he would not take the clothes for stitching as he had to go to his friend's house and borrowed a sum of Rs. 300/- from him. It is this amount according to the prosecution which he had spent for purchase of bottle of whisky and consumed it before committing the offence. P.W. 19 is a tailor by profession at Man-galore. The fact that the accused was working as a tailor and was carrying on tailoring work at Mangalore is not disputed by him. We find no ground to reject the evidence of this witness as in our opinion he is a disinterested witness.
28. By placing these circumstances on record, it is contended on behalf of the prosecution that soon after robbery, the articles robbed were found in possession of the accused and that the accused failed to offer any explanation and that there is conclusive proof of the guilt of the accused.
29. From the careful review of the entire evidence on record, we have noticed through the evidence of P.W. 3-Prema N. Shetty and others that the accused who is related to the deceased persons, specially to Appi Sherigarthy, stayed for some time in her house before his marriage which took place 3 years prior to the date of incident and he was also visiting her house. Unfortunately, in this case all those persons who were acquainted with him are no more. Nirmala Kumari another witness and a friend of deceased Shakuntala could have corroborated the evidence of P.W. 3 about this aspect. But, she is not examined by the prosecution, the reasons of which is not known. But the evidence of P.W. 3 is sufficient to prove that the accused was in the habit of visiting the house of Appi Sherigarthy. His conduct in visiting the house of P.W. 19-Manohara Chilimbi at Mangalore on the evening of 23-3-1994, borrowing a sum of Rs. 300/- on the pretext of going to his friend's house, his presence at Vamanjur at about 8.30 p.m. on the same night as spoken to by P.W. 16-Bava, the fingerprints of the accused on almirah of the house of deceased, as spoken to by P.W. 30-K.R. Venkatesh, the fingerprint expert, the recovery of gold ornaments, the pledging of ornaments, the discharge of loan and recovery of all the ornaments and documents of pledged articles spoken to by P.Ws. 10, 13, 21, 25 and 33, the identification of these ornaments by P.Ws. 3, 6, 7 and 9, the encashment of cheque by the deceased Govinda on the previous day from the Syndicate Bank, as spoken to by P.W. 11, are all circumstances which go to prove that it was the accused and the accused alone who was the perpetrator of the crime. The law regarding the circumstantial evidence is well-settled in a catena of decisions of the Apex Court. In S.D. Soni v State of Gujarat, it is held that when a case rests on circumstantial evidence, such evidence must satisfy three tests as under:
"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else".
30. To sum up, the prosecution has proved by cogent and acceptable evidence that Shakuntala, daughter of Appi Sherigarthy received cash of Rs. 5,000/- from the Bank through her younger brother, deceased Govinda a day prior to the incident by encashing the cheque issued by her brother and that she was in possession of gold ornaments, M.Os. 2 to 14, 18 and 19 along with 3 watches, M.Os. 15 to 17. That the accused who is the son of Appi Sherigarthy's younger brother had knowledge of the affairs of the family of Appi Sherigarthy as he stayed in her house for some time before his marriage which took place about 3 years prior to the date of incident and that he used to visit the house of Appi Sherigarthy even thereafter and that he was in the habit of buying single digit lottery tickets, consuming alcohol, incurring debts and was in dire need of money. He had also pledged the gold ornaments of his wife in order to meet his day-to-day requirements. He was also found near the house of Appi Sherigarthy on the date of incident after murder of Appi Sherigarthy and her daughter, son and granddaughter on the intervening night of 23/24-2-1994. His fingerprints were found on one of the almirahs kept in the room of the house of Appi Sherigarthy and that M.Os. 1 to 18 were recovered upon voluntary statement made by him before the I.O. and that he had spent some money for getting the pledged ornaments of his wife released. The investigation also revealed that he removed the tower bolt of the backdoor of the house of Appi Sherigarthy so as to mislead the I.O. and others that some unknown dacoits had broken the door and committed dacoity and that he had killed not one but four members of the same family to evade and erase the possible evidence of his involvement in the commission of the offence and he has done this after much deliberation. The evidence placed by the prosecution unerringly point out towards the guilt of the accused and the accused alone and all those circumstances are inconsistent with his innocence. Hence, the prosecution has established by cogent evidence that on the intervening night of 23/24-2-1994 the accused committed murder by knowingly causing the death of Appi Sherigarthy in her house and also caused the death of Govinda, Shakuntala and Deepika by assaulting them while in sleep with a reeper and chopper, M.Os. 1 and 47 and committed robbery of gold and silver ornaments, wrist watches and cash and we find him guilty of the offences punishable under Sections 302 and 392 read with Section 397 of the IPC and we accordingly affirm the findings of the learned Sessions Judge.
31. The learned Sessions Judge has written a well-written judgment. She has discussed the evidence on record with reference to the settled position of law. The appreciation of evidence is absolutely correct. There is no infirmity either on facts or on law.
32. We have kept in mind the observations made by the Apex Court in Bachan Singh v State of Punjab, that 'while dealing with a reference for confirmation of a sentence of death, the High Court must consider proceedings in all their aspects, reappraise, reassess and reconsider the entire facts and law. ..... and come to its own conclusion on the material on record in regard to conviction of the accused independently of the view expressed by the Sessions Judge.
33. At the preliminary stage of investigation, the prosecution did suspect two more relatives of the deceased Appi Sherigarthy and they were questioned by the I.O. But, after thorough investigation of this case, the I.O. ruled out the involvement of any other third person. We have scrutinised the entire evidence placed by the prosecution with reference to each and every circumstance relied upon by the prosecution and assured ourselves of the truth of the material placed on record for our scrutiny. This is done on reappraisal and reassessment and reconsideration of the entire facts. We have not seen any ground to take additional evidence in this case as the circumstances which we have discussed supra have not given rise to any such occasion. The circumstances placed before us are cogent and firm and they have the definite tendency unerringly pointing towards the guilt of the accused. The chain of circumstance proved by the prosecution are so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. Therefore, we have no hesitation to confirm the judgment of conviction recorded by the learned Sessions Judge.
34. Re: Sentence.--That takes us to another important and vexed question namely, whether the sentence of death imposed by the learned Sessions Judge is justifiable. The learned Sessions Judge has relied on the ratio laid down by the Apex Court in the following decisions:
(i) Bachan Singh's case, supra, ;
(ii) Machhi Singh and Others v State of Punjab, , ;
(iii) A. Deivendran v State of Tamil Nadu, ;
(iv) Shri Bhagwan v State of Rajasthan, ;
(v) Ram Deo Chauhan and Anr. v State of Assam, , and host of other judgments rendered by the Apex Court on this question. What influenced the learned Sessions Judge to take this extreme step are stated by her at pages 63 and 68 in the following words:
At page 63 the learned Sessions Judge has stated as follows:
"The test for knowing whether the accused was having deprevated mind and the act of accused was diabolical, it is seen that the accused has murdered the persons who has fed and looked after him and cared for him once and without any fault of the deceased persons, which only goes to show that the accused was morally corrupt and his idea was to make something evil which is the status of the deprevated mind.
Similarly the act of accused is very diabolical inasmuch as the accused who was one of the members of the family and who had slept along with deceased Govinda had murdered the said Govinda while he was fast asleep. Had it been to the knowledge of the deceased persons that accused was untrustworthy at least then the deceased Shakuntala and even deceased Appi Sherigarthy would have bolted their rooms from inside having made the accused to sleep in the hall. In the circumstances it only goes to show that the accused had betrayed the trust of deceased persons on him which is very shocking and annoying which is very diabolical.
The manner in which the accused has done away with the life of the persons who were fast asleep is extremely frightening and horrifying and shocking to the very fabric of social living and mutual trust of the society at large.
Besides the said act of the accused is also gruesome inasmuch as it is sickening".
At page 68 the learned Sessions Judge has stated further as follows:
"In the instant case it is to be noted that all the four deceased including Deepika, a little girl aged about 8 years were subjected to such barbaric treatment by a person who was in a position of their trust and as such is equated and assumes the proportion, of extreme depravated and arises a sense of revulsion in the mind of common man.
As observed in Kamta Tiwari v State ofMadhya Pradesh , even in this case the culpability of the deceased assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In this case also the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade to hold that this is a "rarest of rare" cases where the sentence of death is eminently desirable.
Even with regard to the antecedents of the accused it is seen that it is on record that the accused was in a habit of buying single digit lottery tickets and also consuming alcohol on account of which he incurred debts and was in dire need of money which conduct is also highly deplorable and not a healthy personality to be accepted by the society. Even otherwise even subsequent to commission of crime the accused has not reformed himself to any extent inasmuch as by his own conduct by escaping from judicial custody on 19-2-1995 and absconding for a long period of four years till the end of February 1999 even not being accessible to his own family also discloses that he is a dangerous person to society. Further, for the sake of petty amount if the accused could hatch a plan and commit such a cold blooded murder, of his own well-wishers who have fed him and brought him up in life it is reasonable to presume that his tendency is menace to the society. Thus considering from all angles it is seen that this is a rarest of rare case of exceptional nature, facts and circumstances of the case justify the extreme penalty provided under Section 302 of the Indian Penal Code. The accused is a menace to the society and sentence of life imprisonment would be inadequate. Besides the crime committed by him is a brutal diabolic act revolting against the norms of humanity, the human relationship and social set up".
Before reaching this conclusion, the learned Sessions Judge has also relied on and extracted the following proposition emerged from the decision in Bachan Singh's case, supra:
"(1) The extreme penalty of death must not be inflicted except in proved case of extreme culpability;
(2) 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;
(3) Life imprisonment is a rule and death sentence is an exception".
35. We have carefully considered the opinion expressed by the learned Sessions Judge. The Constitution Bench of the Apex Court in Bachan Singh's case, supra, has discussed the wide powers enjoined by the High Court empowered by the provisions of Section 433-A of the Code of Criminal Procedure. This is an amendment brought into the Code by the 1978 Act restricting the powers of remission or commutation in certain cases. At para 158 the Apex Court observed as follows:
"The High Court has been given very wide powers under these provisions to prevent any possible miscarriage of justice. In State of Maharashtra v Sindhi alias Raman, this Court reiterated, with emphasis, that while dealing with a reference for confirmation of a sentence of death, the High Court must consider the proceedings in all their aspects, reappraise, reassess and reconsider the entire facts and law and, if necessary, after taking additional evidence, come to its own conclusions on the material on record in regard to the conviction of the accused (and the sentence) independently of the view expressed by the Sessions Judge".
After referring to the elaborate discussion of the law laid down by the Supreme Court in Jagmohan Singh v. State of Uttar Pradesh, the Apex Court observed at para 164 as follows:
"164. Attuned to the legislative policy delineated in Sections 354(3) and 235(2), propositions (iv)(a) and (v)(b) in Jagmohan's case, shall have to be recast and may be stated as below:
(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Indian Penal Code, the Court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the Court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its own design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence".
The Apex Court after considering the aggravating circumstances and the mitigating factors suggested by Dr. Chitale in Bachan Singh's case, supra, and after reference to the judgment in Rajendra Prasad v State of Uttar Pradesh, wherein the majority said: "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)". It held at paras 207, 208 and 209 as follows:
"207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance. In several States of India, there are in force special enactments, according to which a 'child' that is, 'a person who at the date of murder was less than 16 years of age', cannot be tried, convicted and sentenced to death or imprisonment for life for murder, nor dealt with according to the same criminal procedure as an adult. The special Acts provide for a reformatory procedure for such juvenile offenders or children.
208. According to some Indian decisions, the post-murder remorse, penitence or repentence by the murderer is not a factor which may induce the Court to pass the lesser penalty (e.g., Emperor v Mominuddi Sardar, AIR 1935 Cal. 591 ). But those decisions can no longer be held to be good law in, view of the current penological trends and the sentencing policy outlined in Sections 235(2) and 354(3). We have already extracted the views of A.W. Alschuler in Criminal Year-Book by Messinger and Bittner, supra, which are in point.
209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astronomical imponderables in an imperfect and undulating society". Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal ,and expansive construction by the Courts in accord with the sentencing policy writ large in Section 354(3), Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed".
36. We have also given our anxious consideration to the sentencing policy laid down by the Statute and the philosophy restated in Bachan Singh's case, supra and thereafter it is now held that it is constitution ally permissible to swing a criminal out of corporeal existence of a murdered accused. The Court has to necessarily take into consideration resistance to taking a life through law's instrumentality unless it is shown that it is exceptionally rarest of rare cases when the alternative option is unquestionably foreclosed.
37. Here is an accused who is a middle aged person have no sense of values of life, he hatched a plan to rob the ornaments of his own close relatives who fed him at least for some short period and brought him up against whom they imposed abundant faith and belief and by perpetrating the bloodiest crime he has betrayed that confidence and faith. He has taken away four lives in a brutal manner not only necessarily in execution of his intention to commit robbery but also to erase the possible evidence of his act. This conduct shows his deprived mind. That conduct of a person cannot be viewed with unsolicited sympathy. In our opinion the extreme step taken by the learned Sessions Judge while imposing the extreme penalty of death sentence for an offence of murder appears to be the only option in the case of this nature. Hence, the extreme penalty of sentence of death by hanging till death imposed by the learned Sessions Judge is confirmed. We accordingly accept the reference by confirming the judgment of conviction and sentence recorded by the learned Sessions Judge. We dismiss the appeal (Criminal Appeal No. 1050 of 2002) filed by the appellant-accused.