Karnataka High Court
M.S. Sheshappa vs State Of Karnataka on 23 June, 1994
Equivalent citations: 1994(2)ALT(CRI)541, 1994CRILJ3372, ILR1994KAR2089, 1994(3)KARLJ187
JUDGMENT
1. This appeal is preferred by the appellant, who has been convicted by the learned Sessions Judge, Kodagu, Madikeri, for the offences under sections 302, 506 and 324 I.P.C. He is sentenced to be hanged by the neck till he is dead for the offence under section 302 I.P.C. and to suffer rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 3,000/- in default to undergo rigorous imprisonment for a period of one year for the offence under section 506 I.P.C. He is also sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for a period of 6 months for having committed the offence under section 324 I.P.C. The learned Sessions Judge also ordered the sentences to run concurrently.
2. This appeal is heard along with the Criminal Reference No. 1/1994 for confirmation of the death sentence imposed on the appellant-accused.
3. Deceased Somayya and his wife deceased Poovamma had 7 sons and one daughter. P.W. 4 - Jagadish, accused Sheshappa, Giriappa, Vasudeva, Honnappa, Narayana and Ravindra are their sons. Vedavathi is their daughter with whom we are not concerned in this case. Parvathi is the daughter-in-law of Somayya and Poovamma having married their son Giriappa. A partition in the family of Somayya took place prior to the incident and, thereafter, Somayya, Poovamma, Narayana, Vasudeva and Ravindra lived together. P.W. 4 - Jagadish began to reside in a house about 50 to 100 feet away from Somayya's house. P.W. 3 - Damodar, brother of Somayya, was residing at a distance of about 200 feet away from Somayya's house. Accused Sheshappa began to reside with his wife and children separately nearby. Honnappa was living at Sampaje, while Giriappa, husband of deceased Paravathi lived separately in the same village known as M. Chembu village.
4. About 3 to 4 years prior to the incident, the accused complained to the panchayath of unequal partition of their joint family properties. The Panchayathdars held an enquiry, but found no substance in his claim.
5. P.W. 1 - Ravindra was studying in P.U.C. class in a college at Sampaje which is at about 8.00 kms. away from M. Chembu village. On 26-12-1989, Ravindra came to his house where his parents were residing. Deceased Somayya, his wife deceased Poovamma, and Somayya's son deceased Narayana were inside the house. Somayya and Narayana had slept in the bed-room of the house, whereas deceased Poovamma and P.W. 1 - Ravindra slept in the Pooja room At about 8.45 p.m., accused Sheshappa came to his parents house and knocked the front door and called out his mother. The accused asked for deceased Narayana, holding a katti M.O. 1 (sickle) and then went to the place where Narayana was sleeping. He began to assault Narayana with the katti on his chest, neck and other parts of the body. Thereafter, he assaulted his father Somary with the same katti several times. P.W. 1 - Ravindra, on hearing the cries of Narayana and Somayya, went to the room, and saw the accused assaulting his father and brother with a katti. Thinking that he would also be attacked, P.W. 1 - Ravindra went to the house of P.W. 4 - Jagadish, through the hind door. P.Ws. 1 and 4 returned back to their parents house through the hind door. They saw Poovamma questioning the accused what injustice her husband and Narayana had done to him, holding a lamp. The accused replied that he had decided to finish all of them. Thereafter, he assaulted Poovamma with the katti, M.O. 1, on her neck P.W. 1 told P.W. 4 not to cry or say anything as they would also be attacked by the accused. They were inside the pooja room at that stage. The accused shouted that he had finished three that two had escaped and that he would also kill Giriappa and his wife Parvathi. After expressing so, the accused proceded to the house of Giriappa. P.Ws. 1 and 4 found Somayya, Poovamm a and Narayana dead. They followed the accused while he was proceeding to the house of Giriappa.
6. The accused stood in front of the house of Giriappa and called Parvathi, the deceased. Parvathi opened the door while holding a lamp. The accused assaulted her on neck with the katti several times. Even after she fell down, she was assaulted with the katti M.O. 1. P.Ws. 1 and 4 asked the accused why he was doing so. But, the accused replied that he would finish them also. They became frightened and ran towards the house of P.W. 3 - Damodar, their uncle. But, they did not enter the house of P.W. 3, thinking that the accused would harm Damodar and they took shelter in a nearby hiding place. But, the accused thought that P.Ws. 1 and 4 had entered the house of P.W. 3 Damodar and went inside the house of P.W. 3 and assaulted him with the same katti M.O. 1. Anasuya, wife of P.W. 3 - Damodar, began to shout and fell on the body of her husband to save him. The accused bit her. At that stage, the dog of P.W. 3 began to bark. The accused assaulted the dog also with that katti. Thereafter, he went away with M.O. 1 katti. P.Ws. 1 and 4 being frightened, spent the whole night in the hillock. Next morning, they saw the body of Parvathi in her house. They went to P.W. 11 - Poovappa, who was residing in the same village and reported the incident. P.W. 11 - Poovappa took them to the house of one Prabhakar. They decided that a complaint should be filed before the police at Madikeri, which is about 40 kms. from M. Chembu village. P.W. 1 - Ravindra reached Madikeri Police Station at about 9.00 a.m. and filed a detailed complaint as per exhibit P-1 which was registered in Crime No. 289/1989 at about 10.00 a.m. by P.W. 16 - Somegowda, H.C. attached to the Madikeri Rural Police Station. This in brief is the prosecution case.
7. Sri Devaraj, who assisted the Court as amicus curiae, contends that the trial has not been held in accordance with law, that charges have not been framed properly, that prejudice has been caused to the accused because of irregularity in holding the trial and framing of charges, that the interested version of the eyewitnesses should not have been accepted, that their versions are highly improbable that the recovery relied on by the prosecution does not satisfy the requirement of Section 27 of the Indian Evidence Act, and that in any view of the case, imposition of maximum penalty of death sentence was not called for.
8. Sri C. H. Jadhav, learned High Court Government Pleader, on the other hand, conrtends that there is no irregularity in the trial nor in the framing of charges. According to him, the trial Court has properly appreciated the facts before it, and that it was justified in imposing the death sentence in view of the fact that the accused was found responsible for killing four persons, who are no other than his parents, direct brother and a lady who had married his own brother.
9. Sri Hasmath Pasha, who has also filed vakalath for the accused, supports the contention of Sri M. Devaraj.
10. Sri Devaraj points out that since there are four murders, un-connected to each other, there should have been two trials. He also contends alternatively that four different charges should have been framed regarding four murders.
11. The first charge framed by the learned Sessions Judge reads thus :
"That you on 26-12-1989 between 8.45 p.m. and 9.30 p.m. at M. Chembu village, within the limits of Madikeri Rural Police Station did commit murders intentionally of your father Somayya, mother Poovamma, younger brother Narayana and your younger brother's wife Parvathi by means of a 'Kathi' and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance."
It is his contention that Section 219 Cr.P.C. permits holding of a single trial when the accused is charged with three offences of the same kind within a year. It is, therefore, his contention that the fourth murder of Parvathi should have been separately tried as the two transactions do not form the single transaction to attract Section 220 Cr.P.C. It is also his contention that the four murders alleged against the accused are four distinct offences and there should have been four separate charges, even assuming that the four murders formed part of the same transaction.
12. Section 218 of the Cr.P.C. lays down that for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately. Section 219 states that when a person is accused of more offences than one of the same kind committed within a year, he may be charged with and tried at one trial for any number of them not exceeding three. Section 220 however provides that if in the one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. The question is whether four murders alleged against the accused could be treated as forming the same transaction.
13. In the case of C. N. Krishna Murthy v. Abdul Subban, AIR 1965 Mysore 128 : (1965 (1) Cri LJ 565), it is observed thus at page 573; of Cri LJ :
"The word 'transaction' is not intended to be interpreted in any artificial or technical sense; common sense and ordinary use of language must decide whether on the facts of a particular case, one is concerned with one transaction or several transactions. In order that a series of acts be regarded as the same transaction, they must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose of design and continuity of action. Proximity of time and unity of place are not essential though they furnish good evidence of what unties several acts. The main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end either by attainment of the object or by being put an end to or abandoned. If any of these things happens and the whole process is begun over again it is not the same transaction but a new one in spite of the fact that the same generally purpose may continue. The vinculum juris which interlinks a series of acts so intimately as to form the same transaction is different in each case. It may be proximity of time and place, or continuity of action, or community of purpose and design, or relation of cause and effect, or that of principal and subsidiary."
In the case of Madan Gopal Dey v. State, it is observed thus at page 143 of Cri. L.J. :
"The term 'same transaction' in Section 235 suggests a continuity of action and purpose and the real and substantive test for determining whether several offences are so connected together as to form one transaction depends upon whether they are related together in point of propose or as cause and effect or as principal and subsidiary acts so to constitute one continuous action. If a continuous thread runs through the acts complained of, charges arising out of those acts would be liable to be joined together under section 235. Continuity of action, therefore, seems to be a very important test in the matter."
In the case of Mahadeo Dnyamu Jadav v. State of Maharashtra, it was held that when four murders were committed at about the same time as a part of the same transaction and by one and the same person, it would form a single transaction. In the instant case before us, the accused has committed three murders in one house. The motive alleged is that he was dissatisfied with the partition. At that time, he expressed that he had finished three, that two had escaped, and that he would be finishing Giriappa and his wife Parvathi. It is only after expressing so, he goes to the house of Giriappa and the fourth murder takes place within few minutes. Having regard to these set of facts, we are of the view that these acts are so connected with each other so as to form the same transaction, and that a continuous thread runs through the acts complained of. Therefore, we do not find force in the contention that separate trials should have been held.
14. The alternate contention is that the learned Sessions Judge should have framed four charges alleging four murders. The answer to this objection depends on whether the allegations made against the accused regarding four murders are four distinct offences or a single distinct offence. 'Every distinct offence' cannot be equated with 'every offence'. A Division Bench of the Allahabad High Court in the case of Chunnoo v. State, observes thus at Page 1764; of Cri LJ :-
"10. Section 233, Cr.P.C., requires separate charge to be framed and a separate trial to take place "for every 'distinct' offence of which a person is accused". The use of the word "distinct" is of great significance and the Legislature having inserted it, we must, so far as possible, give it a meaning and not treat it as redundant. "Every distinct" offence cannot be treated as having the same meaning as "every offence". The only meaning that the word "distinct" can have in the context in which it occurs is to indicate that there should be no connection between the various acts which give rise to criminal liability. If there is such a connection, one action is not "distinct" from other actions and each of them, even if it constitutes an offence, does not constitute a "distinct" offence.
After observing so, they held that three separate dacioties alleged in that case committed in three separate houses owned by three different persons are one distinct offence.
15. In the case of Banwarilal Jhunjhunwala v. Union of India, it is observed thus at Page 533; of Cri LJ :-
"The expression 'every distinct offence' in Section 233 must have a different content from the expression 'every offence' or 'each offence'. A separate charge is required for every distinct offence and not necessarily for each separate offence. 'Distinct' means 'not identical'. It stresses characteristic that distinguish while the word 'separate' would stress the 'two things not being the same'. Two offences would be distinct if they be not in any was inter-related. If there be come inter-relation, there would be no distinctness and it would depend on the circumstances of the case in which the offences were committed whether there be separate charges for those offences or not."
We are, therefore, of the view that the learned Sessions Judge has not committed any error in clubbing together in a single charge all the four murders. Further, Section 464 Cr.P.C. states that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was farmed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
16. The Hon'ble Supreme Court in the case of Willie (William) Slaney v. State of Madhya Pradesh, , has observed thus at Page 297; of Cri LJ :
"(13) In our opinion, the key to the problem lies in the words underlined (here in " "). Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal of explain the nature of the charge to him and so forth.
These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once.
Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused."
In the case of The State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, , it is laid down that conviction at a trial cannot be set aside on the ground of irregularity in framing of charges unless there was failure of justice. Having regard to the trend of cross-examination and other materials placed before the Court, we are of the view that no prejudice has been caused to the accused and that there is no failure of justice 16A. The prosecution has examined four witnesses to prove the actual occurrence. P.W. 1 - Ravindra, son of deceased Somayya, testifies regarding the murder of all the four person whereas P.W. 4 - Jagadish, elder brother of P.W. 1, speaks about the death of Poovamma, his mother, and his sister-in-law Parvathi. They also speak about the assault by the accused on P.W. 3 - Damodara and his wife Anasuya. P.W. 3 - Damodara, uncle of the accused, and P.Ws. 1 and 3 have testified to the strained relationship that was existing between the accused on one hand and the other members of his family on the other. He also speaks about the assault by the accused on him and his wife. The assault on P.W. 3 and his wife is also spoken to by P.W. 13 - Chidananda, son of P.W. 3, who was aged about 10 years at the time of the incident.
17. P.W. 15 - Dr. K. B. Suryakumar is examined to testify the injuries found on Damodar and Anasuya at about 4.00 p.m. on 27-12-1989. P.W. 18 - Dr. S. Rangaiah has conducted the post-mortem examination on four dead bodies from 11.00 a.m. to 5.00 p.m. on 27-12-1989. P.W. 1 - Ravindra has testified that the accused came to their house at about 8.45 p.m. on 26-12-1989 and called out his mother deceased Poovamma. He has also testified that she was holding a lantern while she opened the front door of their house. It is in his evidence that the accused, who was holding M.O. 1 katti, went to the place where Narayana was sleeping and assaulted him with the katti on his chest, neck and other parts of his body. It is also in his evidence that he also assaulted his father Somayya on several parts of his body. Thereafter, he went to the house of P.W. 4 - Jagadish through the hind door and came back to the house of his parents and both of them witnessed the accused assaulting deceased Poovamma, their mother, with the same katti several times. P.W. 1 has testified that the accused had shouted that he had finished three of them that two had escaped, and that he would also kill Giriappa and Parvathi. P.Ws. 1 and 4 have testified that the accused went in front of the house of Giriappa, called out Parvathi and when she opened the door holding a lamp, he assaulted on her neck with M.O. 1 katti. According to them, she was assaulted with the katti, even after she fell down. P.Ws. 1 and 4 have further testified that when they asked the accused why he was doing so, the accused threatened them that he would finish them also. P.Ws. 1 and 4 further testified that they ran towards P.W. 3, but thinking that P.W. 3 - Damodar would also be assaulted, they took shelter in a nearby hiding place till morning.
18. P.W. 3 - Damodar, brother of Somayya and uncle of the accused, who was residing a furlong away from his house, says that a dispute existed regarding the partition between the accused and the other members of his family. He also speaks to the extra-judicial confession made by the accused immediately after murdering the four persons. He says that he was assaulted with M.O. 1 katti in his house by the accused. According to him, the accused bit his wife Anasuya when she fell on Damodar to rescue him from the attack of the accused. P.W. 13 - Chidananda, son of P.W. 3, who was sleeping, also corroborates the version of P.W. 3 of the accused assaulting P.W. 3, his father, and his mother Anasuya, who is not examined.
19. Sri M. V. Devaraj points out that the narration of these two witnesses, who speak about the murder of four persons appears to be highly unnatural and their conduct in not rescuing the victim or shouting at the time of the incident is highly improbable. It is also his contention that there is considerable delay in filing the complaint, exhibit P-1, and that the complaint had reached the Magistrate at 10.00 p.m. on 27-12-1989, though the distance between the Magistrate's house and the Rural Police Station is about one kilometre. He also points out certain discrepancies between the occular evidence and the medical evidence.
20. P.W. 1 - Ravindra no doubt was about 16 years at the time of the incident. But, he is not a rustic. It is in evidence that he studying in the P.U.C. class in a college at Sampaje at the relevant point of time. Though it is the prosecution case that the relationship between the accused on one hand and the other family members of the other was strained, we do not find any material to conclude that P.W. 1 had any strong motive to implicate falsely his own brother, though this is a case wherein the accused is alleged to have killed his parents, his brother and his sister-in-law. If P.W. 1's presence at the scene of offence appear to be natural and probable, his version will have to be accepted as he would be the last person to substitute an innocent person with a real culprit. The fact that he was studying at Sampaje cannot be a ground to disbelieve his presence at the time of the incident. After all; he had come to his parents' house and he was not a permanent resident of Sampaje. It is pointed out that P.Ws. 1 and 4 did not attempt to rescue the victims and they did not shout at that time looks very unnatural. They have explained that they were frightened and the accused was holding a sickle and they had seen four successive murders. So, the conduct of PWs. 1 and 4 has sufficiently been explained. How a person reacts to a particular situation cannot be guessed, and his reaction to a particular situation cannot be a ground to reject his evidence unless there are other materials to do so.
21. P.W. 18 - Dr. S. Rangaiah, who conducted the post-mortem examination on the dead body of Somayya, Narayana, Parvathi and Poovamma between 11.00 a.m. and 5.00 p.m. on 27-12-1989, has materially corroborated the ocular evidence. He had observed almost 10 external injuries on the body if Somayya. He has opined that the death of Somayya was due to shock and haemorrhage as a result of multiple injuries sustained. On the dead body of Narayana, he had observed 12 external injuries, and most of them were cut injuries, and his opinion is that the death was due to shock and haemorrhage as a result of multiple injuries sustained. On the dead body of Parvathi, he observed 10 external injuries and according to him, her death was due to shock and haemorrhage as a result of multiple injuries sustained. He also found 12 external injuries over the dead body of Poovamma and he was opined that the death was due to shock and haemorrhage as a result of multiple injuries sustained. He has categorically stated on oath that the injuries found on all four bodies might have been caused by M.O. 1 sickle.
22. Sri Devaraj has pointed out that P.W. 18 has also admitted that the injuries could have been caused by a sharp weapon like an axe and that the doctor has not noted the ages of the injuries. It is pertinent to note that the doctor has opined that M.O. 1 could have caused all those injuries. The evidence of the doctor supports the oral version given by P.Ws. 1 and 4. It is also pointed out that P.Ws. 1 and 4 have not stated the number of assaults inflicted on each person. We should not forget that P.Ws. 1 and 4 were witnessing ghastly murders of their near relations. It is not proper for the court to expect the witnesses to count the number of assault in such a situation. The prosecution is only required to prove beyond reasonable doubt and it is not their burden to remove all doubts.
23. It is in evidence that P.W. 1 - Ravindra reached Madikeri Rural Police Station, which is about 40 Kms. from the place of incident, at about 9.00 a.m. and P.W. 16 - Somegowda, H.C. attached to that Police Station registered the complaint, exhibit P-1, at about 10.00 a.m. on 27-12-1989. But, it is also in the evidence that the F.I.R. exhibit P-12, reached the C.J.M. at about 10.00 p.m. on the same day though the distance between the house of the Magistrate and the Police Station is hardly about one kilometer. An attempt is made to explain the delay in sending the F.I.R. exhibit P-12, to the Magistrate through P.W. 20 - Thimmaiah, who was a Police Constable at the time of the incident at Madikeri Rural Police Station. He has stated that he was asked to deliver the F.I.R. to the Court at about 11.00 a.m. According to him, when he went to the Court, a witness was being examined. He was called to the Police Station as there were four murder and that later he delivered the F.I.R. (exhibit P-12) at 10.00 p.m. at the residence of the C.J.M. It cannot be denied that there was undue delay on the part of the police to deliver the F.I.R., exhibit P-12, to the Magistrate who was available one kilometre away from the Rural Police Station, Madikeri. But, the point to be decided is whether the delay of inaction on the part of the police would otherwise affect the prosecution case. P.W. 1 - Ravindra has categorically stated that he was hiding with P.W. 4 in a hillock the entire night being afraid of the accused. It is in evidence that M. Chembu village is about 40 Kms. away from the Madikeri Rural Police Station. The evidence of P.W. 1 is that only in the morning, on being advised by P.W. 11 - Poovappa and one Prabhakar, he traversed a distance of about 40 Kms. and reached the Police Station at 9.00 a.m. P.W. 16 - Somegowda H.C., has testified to the effect that he registered the complaint at 10.00 a.m. The complaint is a detailed one. Some time would have taken to write that complaint. It is not even suggested to P.W. 16 that exhibit P-1 came into existence later than 10.00 a.m. It is also in evidence that immediately the prosecution has initiated investigation on the basis of exhibit P-1. We have, therefore, no doubt exhibit P-1 has come into existence between 9.00 a.m. and 10.00 a.m. on 27-12-1989 as made out by the prosecution.
24. In the case of State of U.P. v. Gokaran, , the Supreme Court has observed that it is not as if every delay in sending a delayed special report to the District Magistrate under section 157 Cr.P.C. would necessarily lead to the inference that the F.I.R. has not been lodged at the time stated or has been ante-timed or ante-dated or that the investigation is not fair and forthright. Where the steps in investigation by way of drawing inquest report and other panchanamas started soon which could only follow the handing over F.I.R., the delayed receipt of special report by District Magistrate would not enable the Court to dub the investigation as tainted one nor could F.I.R. be regarded as ante-timed and ante-dated. In the instant case before us, the inquest and the examination of the injured have taken place during day time on 27-12-1989. So, we do not find any reason to accept the contention that the prosecution case is tainted because of the delay in filing the complaint, exhibit P-1 or the subsequent inaction of the police in not despatching the F.I.R. to the Magistrate immediately.
25. Under Section 157 of the Cr.P.C. an officer in charge of a Police Station is bound to send the F.I.R. to the Magistrate forthwith before investigation. The object of the report is to safeguard against improvements and concoction. Failure to send the report immediately is a serious lapse and neglect of duty that may result in miscarriage of justice. We, note with regret that the police have not discharged their responsibility in sending the F.I.R. to the Magistrate immediately. We are constrained to observe that the inaction of this nature by the police would severely affect the criminal prosecution. We, therefore, direct the Director General and Inspector General of Police, Karnataka, to take suitable remedial measures in this regard so that such mistakes are not repeated by the police.
26. Sri Devaraj also pointed out that the recovery of M.O. 1 relied on by the prosecution will not attract S. 27 of the Evidence Act. PW 23-A. N. Jogappanavar, C.P.I., has stated in his evidence that the accused stated that he would produce a sickle and other articles if somebody accompanies him. We do not find any disclosure statement preceding the discovery relied or by the prosecution. In the case of Bhimappa Jinappa Naganur v. State of Karnataka, it is observed thus (at page 1804 of Cri LJ) :
"8. ........... The only evidence regarding the disclosure is "come with me" and thereafter the accused proceeded towards Harugeri and stopped near the stream situate at a distance of about 2 kms. away and the accused took out the axe from inside the nallah (stream). In the absence of any disclosure statement the recovery of axe itself becomes meaningless ............"
We are, therefore, of the view that the recovery of M.O. 1 is meaningless.
27. The allegation against the accused is that he assaulted with a dangerous weapon or means PW 3 - Damodar and his wife Anasuya. It is also alleged against him that he criminally intimidated Ravindra and Jagadish with injuries on their person and threatened to kill them. Although we are inclined to accept the version of PW 1-Ravindra that the accused had threatened him and PW 4-Jagadish by saying that he would kill them, the materials placed by the prosecution to substantiate a charge that the accused had assaulted PW 3 and his wife Anasuya are not free from doubt. PW 3-Damodara has stated that he was assaulted by the accused by M.O. 1. This would imply that he was assaulted with the sharp edge of M.O. 1. In the case of Hallu v. State of Madhya Pradesh, it is stated that when a witness says that an axe or a spear is used, it would mean that only a sharp edged or piercing instrument was used and it is for the prosecution to obtain clarification from the witness as to whether a sharp edged or piercing instrument was used as blunt weapon. This assumes importance because, PW 15-Dr. K. B. Suryakumar, who examined PW 3-Damodar on 27-12-1989 at about 4.15 p.m., has stated that he observed only two lacerated injuries which were simple in nature and which could have been caused by the blunt edge of M.O. 1. The discrepancy in this regard has not been properly explained. Anasuya, wife of PW 3-Damodar, the other injured has not been examined. We do not find it safe to rely on the evidence of PW 13 - Chidananda, son of PW 3-Damodar, who was aged about 10 years at the time of the incident. So, we reject the prosecution case regarding the assault on PW 3-Damodar and his wife Anasuya to be on the safer side.
28. We have no hesitation in accepting the ocular evidence of PWs 1 and 4 which is fully corroborated by the medical evidence, though we have rejected the prosecution story relating to recovery of M.O. 1. We have no doubt in our mind that the prosecution has proved the offence under sections 302 and 506, I.P.C. alleged against the accused.
29. The next point to be examined is about the punishment to be imposed on the accused. Sri Devaraj contends that this is not a rarest of rare cases where a death penalty should be imposed. Sri Jadhav, learned Government Pleader, on the other hand, strenuously contended that there is no alternative but to impose death sentence on the accused having regard to the circumstances placed before the Court. It is pointed out by him that the accused is responsible to kill his own father, mother, brother and his sister-in-law at one stretch, without any immediate provocation.
30. It is well settled that the extreme penalty of death should not be inflicted except in gravest cases and that life imprisonment is the rule and death sentence is an exception. A balance-sheet of aggravating and mitigating circumstances will have to be drawn before deciding whether death penalty has to be inflicted or not. Dealing with the factors to be taken into account in such cases, the Hon'ble Supreme Court in the case of Bachan Singh v. State of Punjab, has observed thus (at page 682 of Cri LJ) :
"204. Dr. Chitaley has suggested these mitigating factors :
"Mitigating circumstances :- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances :-
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
205. 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."
In the instant case before us, the accused was 32 years of age at the time of the incident. There is no evidence that he had pre-planned the series of murders. A normal man would not have committed such four ghastly murders within such a short time, that too of his parents, mother, and sister-in-law. He appears to have been obssessed with some ideas of his own. It is the case of the prosecution that he hit his aunt Anasuya, wife of PW 3-Damodar. It is also in evidence that he assaulted with M.O. 1 a barking dog in the house of PW 3. These materials would indicate that the accused was under the influence of some kind of extreme mental or emotional disturbance which impaired in his capacity to appreciate the criminality of his conduct.
31. In the result, Criminal Appeal No. 132/1994 is partly allowed. The impugned judgment dated 24-11-93 is modified as follows :
The appellant-accused is convicted for the offence under sections 302 and 506, I.P.C. He is acquitted of the charge alleged against him under S. 324, I.P.C. He is sentenced to undergo imprisonment for life for having committed the offence under S. 302, I.P.C. and he is also directed to undergo rigorous imprisonment for a period of two years for having committed the offence under S. 506, I.P.C. The substantive sentences to run concurrently. The order relating to disposal of the property is not disturbed. The accused is entitled for set off as per law for the period already undergone by him.
Criminal Reference No. 1/1994 is rejected.
Before we part with this case, we would like to record our appreciation for the valuable service rendered by Sri M. V. Devaraj as amicus curiae at the request of the Court. Though he is a busy advocate, he has assisted the Court continuously for three days.
Let a copy of this judgment be forwarded to the Director General and Inspector General of Police, Karnataka for necessary action.
32. Appeal partly allowed.