Karnataka High Court
I Additional District & Sessions Judge vs Mallika @ Savithramma @ Jayamma @ Kala on 11 March, 2024
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NC: 2024:KHC:10407-DB
CRL.A No. 635 of 2018
C/W CRL.RC No. 3 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.635 OF 2018
C/W
CRIMINAL REFERRED CASE NO.3 OF 2018
IN CRL.NO.635/2018
BETWEEN:
MALLIKA ALIAS
SAVITHRAMMA ALIAS
JAYAMMA ALIAS KALA ALIAS
SHIVAMOGAMMA
W/O HANUMAPPA
AGED ABOUT 43 YEARS
R/O LAKSHMIPURA DAKHALE
BADEKATTER NEAR KAGGALIPURA
KANAKAPURA ROAD
UTTARAHALLI HOBLI
BENGALURU SOUTH TALUK.
...APPELLANT
Digitally signed by
MOUNESHWARAPPA
(BY SRI VENKATESH P. DALWAI, ADVOCATE)
NAGARATHNA
Location: HIGH
COURT OF AND:
KARNATAKA
STATE OF KARNATAKA
BY DODDABALLAPPURA POLICE
DODDABALLAPURA
BENGALURU RURAL DISTRICT
REPRESENTED BY S.P.P.
HIGH COURT BUILDING
BENGALURU-560 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, S.P.P.II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
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NC: 2024:KHC:10407-DB
CRL.A No. 635 of 2018
C/W CRL.RC No. 3 of 2018
CONVICTION DATED 20.01.2018 AND SENTENCE DATED 27.01.2018
PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU IN S.C.NO.290/2008 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302 AND 392 OF IPC.
IN CRL.RC.NO.3/2018
BETWEEN:
I-ADDITIONAL DISTRICT AND SESSIONS JUDGE
BENGALURU RURAL DISTRICT
BENGALURU.
...PETITIONER
(BY SRI VIJAYAKUMAR MAJAGE, S.P.P.II)
AND:
MALLIKA ALIAS
SAVITHRAMMA ALIAS
JAYAMMA ALIAS KALA ALIAS
SHIVAMOGAMMA
W/O HANUMAPPA
AGED ABOUT 43 YEARS
R/O LAKSHMIPURA DAKHALE
BADEKATTER NEAR KAGGALIPURA
KANAKAPURA ROAD
UTTARAHALLI HOBLI
BENGALURU SOUTH TALUK.
...RESPONDENT
(BY SRI VENKATESH P. DALWAI, ADVOCATE)
THIS CRIMINAL REFERRED CASE IS FILED UNDER SECTION
366(1) CR.P.C FOR THE CONFIRMATION OF DEATH SENTENCE
AWARDED TO ACCUSED MALLIKA @ SAVITHRAMMA @ JAYAMMA @
KALA @ SHIVAMOGAMMA BY JUDGMENT DATED 20.01.2018 AND
ORDER OF SENTENCE DATED 27.01.2018 PASSED IN S.C. NO.
290/2008 ON THE FILE OF I-ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 392 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 20-12-2023, COMING ON FOR PRONOUNCEMENT, THIS DAY,
VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING:
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CRL.A No. 635 of 2018
C/W CRL.RC No. 3 of 2018
JUDGMENT
This criminal appeal and the criminal referred case are arising out of the judgment dated 20.01.2018, passed by the I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in Sessions Case No.290 of 2008, wherein the appellant (hereinafter referred to as 'Accused') has been convicted for the offence punishable under Section 302 of IPC and sentenced to death for the offence punishable under Section - 302 of IPC. She is sentenced to undergo rigorous imprisonment for a period of ten years and fine of Rs.10,000/- with default imprisonment for a period of one year for the offence under Section 392 of IPC. The learned Sessions Judge has made a reference for confirmation of the death sentence as per Section 366 of Cr.P.C.
2. The case of the prosecution as unfolded during trial is as follows:
The name of the deceased is Smt. Nagalakshmi. On 18.12.2007 at 3:30 p.m., the accused took deceased Nagalakshmi to Ghati Subramanya temple on the pretext of offering 'Pooja' and took room No.5 on rent at Arya Vysya -4- NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 Choultry of the temple from the first informant-PW.1. On the same day, at 7:00 p.m., when PW.1 had been for room check, he saw room No.5 being locked with a different lock(MO.2).
Thus, he became suspicious and secured his workman, who broke open the lock and found the deceased lying dead in supine position. The accused who had accompanied the deceased to the room was not found there. The accused had murdered the deceased by strangulation with electric wire, twine thread and by administering cyanide, committed robbery of Mangalya gold chain, ear stud with mati, wrist watch and cash belonged to the deceased. PW.1 informed the police about the incident. This led to registration of FIR and investigation.
3. The prosecution in order to prove its case got examined 12 witnesses as PWs.1 to 12 and got marked 13 documents Exs.P1 to 13 and 13 material objects MOs.1 to 13.
4. The trial Court on considering the oral and documentary evidence on record convicted the accused for the offences punishable under Sections 302 and 392 of IPC on 30.3.2012. Being aggrieved by the said judgment, the accused preferred Crl.A.631/2012 before this Court. In turn, this Court set aside the judgment of conviction and order on sentence passed by -5- NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 the trial Court on the ground that PW.8 Doctor was not cross- examined, hence, remanded the matter to the trial Court. After complete examination of PW.8, the trial Court again convicted the accused for the offences under Sections 302 and 392 of IPC.
5. Being aggrieved by the judgment of conviction and order on sentence, the accused preferred this appeal.
6. Learned counsel for the appellant contended that the conviction and sentence passed by trial Court are contrary to the law, evidence and probabilities of the case. There is serious error in convicting the appellant relying on the prosecution evidence, which is highly interested, contradictory, unreliable and artificial. The prosecution is guilty of suppression of the vital links towards innocence of appellant and has not come forward with true version of the incident. The learned Sessions Judge has committed serious error in holding that the prosecution has proved the case beyond reasonable doubt and that the appellant is guilty of the offences alleged against him.
7. It is contended that the learned Sessions judge failed to appreciate that, there are no eye witnesses to the incident and also no direct evidence against the accused to confirm -6- NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 death sentence against the accused. The case is based on circumstantial evidence and the prosecution has failed to prove all the circumstances. It is contended that, PW.11 the Police Inspector, Kalasipalya Police Station, Bengaluru has deposed that on 30.12.2007, at about 2:45 p.m., he received a credible information that a women was suspiciously trying to sell the mobile phones at Kalasipalya. Immediately, he along with his staff, observed the said women from a distance and on suspicion with the help of a woman Police Constable, he arrested the said women, who was holding a bag in her hand and took her to the Police Station, enquired and recorded her statement, where she admitted the commission of present crime. It is contended that since the facts, date of arrest of the accused and date of recording statement of the accused do not match with the date of commission of offence of the present case, on that ground alone, the case of the prosecution appears to be doubtful.
8. Further, it is contended that the prosecution has seized the cyanide in the present case, however, to ascertain as to whether the seized article is cyanide or talcum powder, the Investigating Officer has not sent the seized article to Forensic -7- NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 Science Laboratory, Bengaluru. Further, the Investigating Officer has not investigated as to how the gold articles were recovered from the possession of the accused. PW.2-husband of deceased Nagalakshmi failed to identify the articles found in MO.3-bag at the time of seizure mahazar(Ex.P8). It is contended that, at the time of inquest mahazar-Ex.P3, the witnesses had found the anklets, toe rings and a nose stud on the person of deceased and if the accused had intention of robbing the gold and silver articles, the accused would have robbed those articles also soon after the commission of murder. The same would go to show that the accused is not involved in the case and has been falsely implicated. It is further contended that though the incident took place on 18.12.2007 in between 3:00 p.m. and 3:30 p.m., the complaint came to be lodged on the next day i.e., on 19.12.2007 and the said delay in lodging the complaint has not been explained. The prosecution has also failed to prove the time of death of the deceased. It is contended that the prosecution has failed to prove all the circumstances relied upon by it. Further, the accused need not explain as to when he parted the company of the deceased. It is contended that the trial court has not -8- NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 chosen to state any reasons that the present case is rarest of rare case while imposing the death sentence against the accused and the accused is willing to reform, however, the trial Court has not considered these aspects in proper perspective.
9. The prosecution has failed to prove the case against the accused beyond reasonable doubt and in the absence of the same, on the ground of reasonable doubt, the accused is liable to be acquitted. The respondent has not conducted impartial investigation in the case and there is deliberate attempt to fix the accused in the crime and hence, the death sentence imposed against the accused by the Sessions Court is bad in law.
10. Learned counsel contended that the death sentence imposed against the accused is severe and harsh. Hence, the learned counsel prayed to acquit the accused of the offences charged.
11. Per-contra, learned SPP-II Sri. Vijayakumar Majage, appearing for the respondent-State contended that the accused has not disputed the death and cause of death of the -9- NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 deceased. There is no dispute as to identity of accused, however, the accused disputed her involvement in the case.
12. It is contended that, the prosecution relied on circumstantial evidence and the prosecution has proved all the chain of circumstances. The accused is a habitual offender, who is involved in six murder cases, since the year 1998. All the prosecution witnesses have categorically stated about the involvement of the accused in the present case. Thus, the burden casted upon the prosecution stands discharged and the burden shifted against the accused has not been discharged. The accused has not offered any explanation in her statement recorded under section 313 Cr.P.C. Hence, the trial Court has rightly come to the conclusion that the accused robbed the belongings of deceased Nagalakshmi and committed her murder. Thus, he prayed to confirm the death penalty imposed against the accused.
13. Upon hearing the learned counsel for the accused and learned SPP-II and on considering the oral and documentary evidence available on record, by the impugned judgment, the Sessions Court found the accused guilty of the
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 above offences. The learned Sessions Judge was of the view that the prosecution has proved the following circumstances namely:
a. Homicidal death of the deceased and recovery of articles from the scene of crime;
b. The deceased was last seen in the company of the accused;
c. Motive;
d. Opportunity to commit offence;
e. Arrest of the accused;
f. Recovery of robbed articles(gold ornaments, wrist watch and cash belonging to the deceased from the possession of the accused);
g. Identification of personal belongings of the deceased by her husband and sister;
h. Identification of deceased and accused;
i. Previous and subsequent conduct of the accused;
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 j. Abscondence of the accused;
k. Non-explanation on the part of the accused; and l. Medical evidence;
14. The trial court is of the opinion that all the above circumstances have been conclusively established by the prosecution and these circumstances establish the guilt of the accused beyond reasonable doubt for all the offences charged against her. While considering the case for imposition of sentence, the trial court enumerated the aggravating and mitigating circumstances brought on record by the prosecution and found that the accused had ingeniously deceived the deceased by impersonation and committed the murder of a helpless woman by strangulating her and also having regard to the fact that similar modus-operandi was being adopted by the accused in many cases. The trial Court observed that, the accused has been convicted in seven murders and robbery cases, out of which two cases at Tumkur (S.C.No.164/2008 and S.C.No.124/2009), Mysore (S.C.No.128/2010), Mandya (S.C.No.88/2011), Chinthamani (S.C.No.4/2009), Ramanagar (S.C.No.100/2008) and Bengaluru Rural (the case on hand). In
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 all other six cases, the accused has been convicted with life imprisonment and fine. In fact, in one case i.e., S.C.No.164/2008, the accused was sentenced with death penalty, which was later reduced into life imprisonment by this Court in Crl.A.No.434/2009. Hence, the trial Court was of the opinion that case falls within the category of 'rarest of rarest case' and accordingly imposed the extreme penalty of death sentence and made a reference to this Court seeking confirmation thereof as required under Section 366 of Cr.P.C.
15. In this case, the prosecution relied upon the circumstantial evidence and hence it has to prove that the accused committed the murder of deceased Nagalakshmi and none else. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified, only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The question of motive of the accused assumes importance in the case based on circumstantial evidence. Hence, the prosecution has to prove the following circumstances:
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a) Homicidal death;
b) Motive;
c) Last seen theory;
d) Recovery of gold and other articles;
e) Conduct of the accused; and
f) Section 106 of the Indian Evidence Act.
16. In order to prove the homicidal death of deceased Nagalakshmi, the prosecution examined PW.1-T.S. Govindashetty, who saw the dead body of deceased for the first time in room No.5 of Arya Vysya Choultry situated at Ghati Subramanya Temple. He has stated that while cleaning the Choultry, he noticed that room No.5 which was given in rent to the accused and deceased was locked by a different lock and being frightened, he secured his workman viz., Chandrashekar, and broke open the lock and saw the deceased lying dead on the ground with a wire and twine thread tightened around her neck.
17. PW.3 Dasappa has stated that himself and PW.1 went to room No.5 along with police and they saw the dead body of deceased with a wire and twine thread tightened
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 around the neck of the dead body, they also saw a tape recorder(MO.1), bag (MO.3) and a lock (MO.2), near the window and hence, the police seized those articles by drawing a panchanama as per Ex.P2 and seized MOs.1 to 8.
18. Further, the prosecution examined PW.4 Ashwathappa, a witness to inquest mahazar-Ex.P3, who has stated that the police conducted inquest mahazar in his presence as per Ex.P3 and they saw the dead body on a mat with wire and thread tied around the neck of dead body. PW.7 Ramesh Kumar, the Circle Inspector and Investigating Officer has stated that on receiving the information about the death, he went to the Choultry, secured finger print expert and dog squad and in the presence of PW.4, he drew Ex.P3 inquest mahazar and also conducted spot mahazar as per Ex.P2 and seized MOs.1 to 8 articles in room No.5 of the Choultry.
19. In order to corroborate the oral testimonies of PWs.1, 3, 4 and 7, the prosecution relied upon the medical evidence. PW.8 Dr. M. Ashwathnarayana, Medical Officer, General Hospital, Doddaballapur, who conducted autopsy of the deceased has stated that on 19.12.2007 at 2:30 p.m., he
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 received a requisition from Doddaballapura Police for conducting post-mortem examination on the dead body of deceased Nagalakshmi, aged about 30 years. Accordingly, he conducted autopsy on the same day in between 4:00 p.m. and 6:00 p.m. and during examination he found the following:
The dead body is of 30 years, old female, moderately built and well nourished with a height of 5 feet 3 inches, eyes closed, tongue protruded and bitten. Bluish discoloration of face. Rigor mortis present in lower limbs and absent in upper limbs. Three ligature marks seen around the neck(plastic tape recorder wire, one twine thread and one more thread seen around the neck) measuring 13.5 inches x 4mm x 1.5mm around the neck above the thyroid cartilage.
Abrasion seen on the back of the right fingers. Therefore, the Doctor dissected the body and found the following injuries:
a. Fracture of left horn of hyoid bone;
b. Lungs congested and edematous on cut section Osseous bloodstained frothy fluid.
As per the opinion of the doctor, the death was due to 'asphyxia as a result of strangulation'. Hence, he issued the post-mortem examination report as per Ex.P5.
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20. It is further evidence of PW-8-Doctor that, on 02.04.2008, the Investigating Officer requested him to furnish opinion on material objects-MOs.5 to 8, thus, he examined those articles and opined that the death could be caused by strangulation with the help of the plastic wire, twine thread and cotton thread found on the dead body.
21. The oral evidence of PW.8-Dr. H. Ashwathnarayan and the contents of Ex-P5- post mortem examination report revealed that the cause of death of deceased Nagalakshmi was due to asphyxia as a result of strangulation. Hence, as per the oral evidence of the Doctor, who conducted the autopsy and the evidence of the inquest mahazar witnesses goes to show that deceased Nagalakshmi died due to strangulation. Thus the oral evidence of PWs.1, 3, 4 and 7 is corroborated by the medical evidence as to the cause of death of deceased. Hence, the homicidal death of deceased Nagalakshmi stands proved.
22. The second ground on which the prosecution has placed reliance is the motive. So far as motive is concerned, where a case rests squarely on circumstantial evidence, the inference of guilt can be justified, only when all the
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The question of motive of the accused assumes importance in the case based on circumstantial evidence. Onus is on the prosecution to prove that the chain is complete, whereas in this case, it is the specific case of the prosecution that the accused is an habitual offender with modus operandi of picking up innocent women, inducing them to offer pooja and on that pretext, she would take them to temples and there she used to kill them by using cyanide or by strangulation. Further, it is her calculated plan to have unjust enrichment by robbing innocent women who would fall prey to her trap.
23. In order to establish the motive aspect, PW.11-S. K. Umesh, the Police Inspector, Kalasipalya police station, who arrested the accused has stated that after arrest of the accused, he recorded her confessional statement as per Ex.P9 and she confessed to her previous crimes and he came to know that accused had already murdered six women at various places by taking them to temple rooms which can be seen from Ex.P8 mahazar. In fact, these factual aspects are not disputed by the defence.
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24. Further, PW.2-Guruswamy husband of deceased and PW.6-Vijaya, the younger sister of deceased have narrated the details as to how the deceased came in contact with the accused, how she made deceased to believe her. It was stated by them that as the deceased and PW.2 her husband had two girl children and as deceased desired to have a male issue, the deceased used to visit several temples along with her sister PW.6, who had no issues at all. During this process, the accused was introduced by an Archaka of Kempamma Temple, Hebbala, five days prior to the date of the incident. PW.6 in her evidence had stated that on the date of incident, she and deceased accompanied the accused and went to Kempamma temple in an autorickshaw from their house. Later, the accused took only the deceased from Kempamma Temple to Ghati Subramanya temple, however deceased did not return and her body was found in room No.5 of Arya Vysya Choultry. Hence, PW.2 is the person who has last seen the deceased in the company of the accused.
25. It is the evidence of PW.11- S.K. Umesh, Police Inspector, Kalasipalya Rural police station, that he recovered one pair of fancy stud with maati-MO9, wrist
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 watch-MO10, purse-MO11 and cash of Rs.3,095/- -MO13 under Ex.P8 seizure mahazar along with other articles pertains to other cases from the possession of accused. The seized articles were identified by PW.2 and PW.6. Further, the police seized gold ornaments, mobiles and other articles which were robbed from other deceased women by the accused in other cases. Therefore, PW.6 has stated that the accused with a motive to rob the gold ornaments, took the deceased to Ghati Subramanya temple on the pretext of offering pooja and murdered the deceased and robbed the gold ornaments and cash.
26. From the perusal of the evidence of PWs.1 to 3, 4, 6 and 7, it clearly establishes that the accused had a clear opportunity to execute her motive. She got acquainted with the deceased, learnt about her desire to have a male child, induced her to perform pooja at various temples, took her to temples and finally she planned to murder and rob the gold ornaments and other valuables of the deceased. It shows that, the motive of the accused, as usual, from all previous incidents was to make wrongful gain by robbing the valuables of the deceased. As such, the evidence on record would clearly established the
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 fact that the accused with an intention to rob, created an opportunity, took the deceased to an isolated place and committed her murder. Therefore, the motive aspect adds a link as one of the circumstance in the prosecution case.
27. The third ground on which the prosecution has placed reliance is the 'last seen theory'. It is to be noted that PW.2, the husband and PW.6, the sister of deceased have witnessed that deceased was last seen in the company of the accused prior to her death. The 'last seen theory' comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused person being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is long gap and possibility of other person coming in between exists.
28. In order to prove the last seen theory, PW.2-the husband of deceased having identified the accused has stated that on 18.11.2007 at about 10:00 a.m., the accused visited
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 his house, at that time, he saw the accused interacting with deceased Nagalakshmi in his house, thus, he enquired his wife(deceased) as to the whereabouts of the accused to which, deceased stated that she came in acquaintance with the accused when she had been to a temple. PW.2 further stated that, while the deceased and PW.6 were going with the accused, they stated that they would visit Hebbala Kempamma Temple in order to perform Pooja. PW.6 also stated that on 18.12.2007, the accused had been to the house of deceased at about 9:00 and 9:30 a.m., at that time, PW.2 and deceased were in their house and in the meanwhile, the accused came to the house of deceased and took the deceased to Hebbala Kempamma Temple and later, the accused took only the deceased to meet Archak Pillamma of Kempamma Temple who had been to Nelamangala and thereafter, they went to Ghati Subramanya Temple. Both accused and deceased told her to wait and as they did not return till 6:30 p.m., she came back home. Thereafter, when she tried to contact the accused, her phone was switched off. She further stated that, and on the same day, at about 9:00 to 9:30 pm., the police came to their house and enquired about the deceased. It appears that PWs.2
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 and 6 in categorical terms stated that accused took the deceased with her to Hebbala Kempamma temple and from there, the accused and deceased went to Ghati Subramanya Temple and asking PW.6 to wait there i.e., at Kempamma temple, but did not return.
29. In our opinion, the statement made by the deceased before PW.6 that after visiting Archak Pillamma, Kempamma Temple at Nelamangala and other temples including Ghati Subramanya Temple and she would return home after performing the pooja becomes relevant fact. This evidence goes to show that on the date of the incident, the deceased left the house to perform pooja at the instance of the accused. The circumstances brought out in the evidence of PWs.2 and 6 indicates that on the advice of the accused, the deceased had worn gold ornaments and carried sufficient cash with her. The place of pooja was also suggested by the accused. Hence, the deceased on her own did not decide to go to the temple. It indicates that, naturally, the accused accompanied the deceased to various temples. The surrounding circumstances would go to show that deceased and accused were together in room No.5 of Arya Vysya Choultry till the evening.
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30. The learned counsel for the accused though contended that absolutely there is no evidence to show that the accused and the deceased were together when they set out to Ghati Subramanya temple on the date of the incident, yet, we find from the evidence of PW.6 while giving her statement during inquest, has narrated the above facts stating that on account of advice and insistence by the accused, deceased left the house to go to temple and at 6:30 p.m. as deceased did not return, she called her over phone, even the phone of accused was also switched off. These circumstances clearly corroborate the evidence of PWs.2 and 6 that on the date of the incident, the deceased had left home at the instance of the accused to perform the pooja. If this evidence is analysed in the context of evidence of PWs.11 and 12, it leaves no manner of doubt that when she called PW.6 over phone, the deceased and the accused were together in the temple. The circumstances brought out in the evidence lead to the inference that on the pretext of taking her to the temple, the accused took her to Ghati Subramanya Temple.
31. The aforesaid conclusion gets fortified from the evidence of PW.1- T.S. Govindashetty. PW.1 was managing the
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 rooms of the Choultry constructed by Arya Vysa Trust, Ghati Subramanya. According to PW.1, on 18.11.2007 in between 3:00 p.m. and 3:30 p.m., the accused had come to his lodge along with a woman and requested him to allot a room, but he informed them that no rooms were kept vacant. After 10 minutes, again the accused came and requested him stating that she came in the morning to perform pooja and since she is strained, requested for a room to take bath and assured him to vacate within half an hour, accordingly, PW.1 received room rent of Rs.100/- and advance amount of Rs.50/- from the accused and handed over the key to her in respect of room No.5. At that time, she disclosed her name as Savithramma, resident of Yeshwanthpura. The woman who accompanied the accused was aged between 35-38 years. The accused and deceased occupied room No.5. The accused and the woman did not vacate the room. PW.1 saw separate lock to room No.5, hence, he broke open the lock and saw the dead body of deceased in room No.5. Therefore, PW.1 has also stated that the accused who accompanied the deceased on the date of the incident had stayed in room No.5. It is relevant to note that PW.1 is an independent and dis-interested witness. Nothing has
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 been brought out in his cross examination to suggest that he had any motive to depose against the accused or to falsely implicate her. From the perusal of the evidence of PWs.1, 2, 6, 11 and 12, it appears that the accused and the deceased came together to the room, but within couple of hours, the accused alone left the room carrying a bag and baggage. We do not find anything unusual in the evidence of these witnesses as to the last seen of the deceased in the company of the accused. Further, considering the evidence of these witnesses, as a whole, coupled with other circumstances, as discussed above, we are of the view that the prosecution has convincingly established the fact that the accused and deceased were found together in a room at Ghati Subramanya temple.
32. So far as recovery of gold and other articles are concerned, the prosecution relied upon the evidence of PW.6- Vijaya, the sister of deceased who has stated that on the date of the incident, the deceased was wearing two strings of Mangalya Chain, one pair of ear stud with mati. She identified MO.9-ear stud with mati and MO.11-purse which belonged to her and the said purse was taken by the deceased, while she accompanied the accused from Kempamma temple on the date
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 of the incident. PW.2 the husband of deceased also identified MO.9-earstud with mati, MO.10-wrist watch and MO.11-purse, as belonging to his wife and that she had worn them on the date of the incident. Therefore, PW.2 being the husband and PW.6 the sister of deceased identified the personal belongings of the deceased.
33. PW.7-Ramesh Kumar, Police Inspector has stated that on 18.12.2007 at about 9:30 p.m., he received information that a lady is murdered in the Choultry of Subramanyaswamy Temple, immediately, he went to the spot, enquired PWs.2 and 6, who disclosed that a woman had accompanied the deceased on the day of the incident. PW.2 identified his wife's dead body and he complained that Mangalya chain and ear stud worn by his wife were missing.
34. As per the oral evidence of PW.11- Police Inspector, Kalasipalya, he received credible information that on 30.12.2007 at 2:45 p.m. that a woman was suspiciously trying to sell used mobile phones at Kalasipalya Private Bus stand. Immediately, he along with his officials and two panchas went to Kalasipalya bus stand and observed the woman from a
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 distance, got suspicion and secured her and made personal search with the help of a women Police Constable and enquired her, in turn she revealed her name as Mallika alias Lakshmi. She gave her voluntary statement as per Ex.P9, wherein she confessed stating that few days before, she has lured few women on the pretext of offering Mandala Pooja, gave them theertha, prasadam by mixing cyanide powder and murdered six women in the premises attached to various temples and robbed articles belonged to those women and sold those articles and remaining few articles are in her bag, thus, she produced said bag-MO.3 before him, MO.9-golden stud with mati, MO.10-wrist watch, MO.11-small purse and MO.13-cash of Rs.3,095/- contained in MO.3-bag. Hence, PW.11 seized said bag-MO.3, MOs.9 to 11 and 13 under Ex.P8-seizure mahazar and registered the case against the accused.
35. The prosecution relied upon the oral evidence of PW.10-Basavaraju, an independent panch witness who has stated that on 30.12.2007 at about 3:00 p.m., PW.11-Umesh called him near Kalasipalya Private bus stop, where the accused was in the custody of police, they took her from Kalasipalya Bus stop to police station and they enquired her and found a
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 bag with the accused and also found MOs.3, 9 to 11 and 13. Hence, the police seized those articles under Ex.P8-seizure mahazar in his presence.
36. From the perusal of the oral testimonies of PWs.2, 6, 7, 10 and 11, it appears that the accused voluntarily confessed before PW.11 while she was in police custody, hence, it is hit by Section 25 of the Indian Evidence Act and becomes inadmissible to an extent of admission of crime. But, her statement is not barred by Section 25 of the Indian Evidence Act with regard to other information disclosed by her in that statement and the same is admissible under Section 8 of the Indian Evidence Act. As per the disclosure statement, the Investigating Officer discovered the facts pursuant to disclosure made by the accused and pursuant to her statement, MO.1- tape recorder was discovered and recovered from the choultry room, this strengthens the prosecution case and it is one of the circumstance to corroborate the prosecution witnesses. It shows that, the prosecution was able to prove the fact that on 18.12.2007, the deceased had accompanied the accused and they went to Ghati Subramanya Temple and at Ghati Subramanya Temple room, the body of deceased was found
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 and on 30.12.2007, the accused was arrested and from her possession MOs.3, 9 to 11 and 13 were seized under Ex.P8 seizure mahazar, pursuant to confessional statement of the accused at Ex.P9. Therefore, the recovery of incriminating articles at the instance of accused is one of the strong circumstance to establish the guilt of the accused.
37. In this regard, the only inference that can be drawn is that the accused murdered the deceased to accomplish her motive and robbed the gold ornaments, wrist watch and cash from the person of deceased from the choultry room and absconded, later, she was arrested within 12 days from the date of incident by the Police Inspector of another police station. Further, the robbed articles belonged to the deceased were seized from the possession of the accused and those articles were identified by the husband and sister of the deceased.
38. So far as conduct of the accused is concerned, as per the case of the prosecution, the previous history of the accused is notorious and she was branded as a serial killer of innocent ladies by administering them cyanide and robbing
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 them. From the perusal of the evidence on record, it would clearly show that the accused knew about the desire of the deceased to have a male issue, induced her and took her to a temple on the pretext of offering Pooja, got a room on rent in the choultry and in the room, she committed the murder of the deceased and robbed her valuables. Fortunately, the accused was arrested within 12 days from the date of incident, enquired her, recorded her voluntary statement and pursuant to her voluntary statement, the Investigating Officer seized MOs.3, 9 to 11 and 13 under Ex.P8-seizure mahazar. Therefore, the antecedents of accused clearly establishes that she had involved in similar such other offences, wherein she murdered in all five other women by applying same tactics. The conduct of the accused clearly establishes from the evidence of PWs.2 and 6 that the accused got acquainted with the deceased and her sister and takes them to the temple with false promise of offering Pooja, which shows her intention, motive, mensrea to rob the belongings of the deceased after committing her murder. In this case also, the accused after committing the murder of the deceased, she locked room No.5 with a new lock and absconded from scene of occurrence. If at all, she was not
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 responsible for the death of deceased, then there was no occasion for her to disappear from room No.5. The Investigating Officer also seized MO.2- damaged seven lever lock from the scene of crime. The fact that she had absconded from the scene of occurrence is an additional chain of circumstance, which further strengthens the case of the prosecution.
39. So far as, invoking section 106 of the Indian Evidence Act, the prosecution must first establish that there was any fact within the special knowledge of the accused. In a case of circumstantial evidence, the accused being the master of the crime alone knows the circumstances which led to death. This Section mandates that facts that are within the exclusive knowledge of accused shall be explained by him/her alone. Non explanation of incriminating circumstances leads to an inference that the accused and the accused alone is the author of the crime. Once the prosecution is able to establish that, at the relevant time, room No.5 was in exclusive occupation of deceased and the accused and subsequently, the deceased was strangulated, thus, the burden of proof would lie upon the accused to show that under what circumstances, the deceased
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 was done to death. Further, if a person is last seen in the company of the deceased and if the facts convincingly establish as to their last seen together, the burden of proof would lie upon the accused to show under what circumstances death had occurred. Whereas, in this case, the accused has not offered any explanation as to how and when she parted with the company of deceased and her failure to offer reasonable explanation itself provide an additional link in the chain of circumstances.
40. In this case, the accused and deceased were in room No.5 of Arya Vysya Choultry at Ghati Subramanya Temple and the death of deceased occurred on the same day. This fact was within the knowledge of the accused, but, the accused failed to explain the circumstances as to how the death occurred and strangulation marks on the neck of the deceased. PW.8 Doctor opined that death was due to asphyxia as a result of strangulation and the death could be caused by strangulation with the help of the plastic wire, twine thread and cotton thread found on the dead body. It has already been held that the death of deceased Nagalakshmi is homicidal. The evidence on record also discloses that the incident had occurred on the
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 same day and there is possibility of no person other than the accused to have remained in contact with deceased Nagalakshmi.
41. Except bare denial in her statement under section 313 Cr.P.C., the accused has not offered any explanation as to how deceased Nagalakshmi was strangulated. Obviously, this circumstance goes against her. Section 114 of the Indian Evidence Act empowers the Court to presume the existence of any fact which it thinks is likely to have happened. From the perusal of evidence on record, the only reasonable inference that could be drawn is that the accused alone committed the murder of deceased.
42. It is now well settled that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. There should be no gap left in the chain of circumstances. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the instant case, the circumstances proved by the
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 prosecution, in our opinion, form a complete chain unerringly pointing out the guilt of the accused for the murder of the deceased. It is established beyond pale of doubt that the accused took the deceased with her to Arya Vysya Choultry on the date of the incident and she left the Choultry and returned alone leaving Nagalakshmi/deceased to die in room No.5. The circumstance of the deceased last seen with the accused, as already discussed above, in the absence of any explanation by the accused for her unnatural death would lead to an inevitable conclusion that the deceased was done to death by the accused. It is further proved that the death of deceased is homicidal due to strangulation. The manner in which the accused committed the murder of the deceased, the place and time of the incident and sudden disappearance of the accused from room No.5 of Arya Vysya Choultry are suggestive of the fact that the accused committed murder of deceased by strangulation and thereafter, escaped from room No.5 without checking out from the choultry.
43. The circumstances discussed above would clearly indicate that until her death, the deceased was not found in the company of any person other than the accused. Therefore, the
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 possibility of any other person strangulating the deceased and causing her death gets ruled out. The recovery of the gold ornaments at the instance of the accused establishes the fact that murder of deceased Nagalakshmi was committed by her for gain.
44. The prosecution has proved the modus operandi adopted by the accused which, in our opinion, proves the conduct of the accused before and after the commission of the offence. The articles seized from the possession of the accused namely MOs.3, 9 to 11 and 13 establishes the fact that those articles belonged to the deceased. The accused was found inducing innocent women to perform pooja and later took them to lodges, commit their murder and rob their valuables. Concealing her identity and disguising her person is a clear proof of the guilty intent and the motive of the accused.
45. Thus on overall consideration of all the above facts and circumstances, we are of the considered opinion that the prosecution has proved the guilt of the accused beyond reasonable doubt for the offence under section 302 of Indian Penal Code. The trial court, therefore, was justified in
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 convicting the accused for the said offence. We do not find any error or infirmity whatsoever in the finding recorded by the trial court. Even on reconsideration of the material on record, we do not find any reason to differ with the view taken by the trial court. As a result, the conviction of the accused for the offence under Section 302 of Indian Penal Code is hereby confirmed.
46. We further hold that the prosecution has successfully proved that the accused committed the above murder with an intent to rob the gold ornaments and valuables of the deceased. It is proved in evidence that on committing the murder of the deceased, the accused carried away the gold ornaments of the deceased and the same were recovered at the instance of the accused, thereby establishing the ingredients of offence under section 392 of Indian Penal Code. Consequently, the conviction of the accused for the said offence also stands confirmed.
47. We have heard the learned Additional State Public Prosecutor-II and the accused on the question of sentence.
48. The learned counsel for the accused pleads for setting-aside the death penalty awarded by the trial Court. He
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 submits that the facts of the case do not fall within the category of "rarest of rare case" and therefore, the death penalty cannot be maintained.
49. The learned State Public Prosecutor-II has filed a memo furnishing the details of 07 cases registered against the accused. He has narrated the status of each case and the charges framed therein against the accused. He further submits that the accused has conducted herself in a most despicable and mean manner. The charges proved against her indicate that with an intent to commit robbery, she lured the deceased on the false promise of performing pooja in temples and took her to a remote lodge and strangulated her to death.
50. Learned State Public Prosecutor-II submits that the accused has committed an aggravated offence. Therefore, there is absolutely no mitigating circumstance to take any lenient view in the matter. The learned State Public Prosecutor-II further submits that the accused has been convicted in 7 murder and robbery cases, out of which, two cases by Court at Tumkur (S.C.No.164/2008 and S.C.No.124/2009) and one each at Mysore (S.C.No.128/2010),
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 Mandya (S.C.No.88/2011), Chinthamani (S.C.No.4/2009), Ramanagar (S.C.No.100/2008) and Bengaluru Rural (the case on hand). In all other six cases, the accused has been convicted with life imprisonment and fine. In fact, in one case i.e., S.C.No.164/2008, the accused was sentenced with death penalty, which was later reduced into life imprisonment by this Court in Crl.A.No.434/2009.
51. We have considered the submissions made by the accused as well as learned State Public Prosecutor-II. We find from the impugned judgment that the trial court has weighed the aggravating and mitigating circumstances and having held that the aggravating circumstances far outweigh the mitigating circumstance, has chosen to impose the extreme penalty provided under section 302 Indian Penal Code. The aggravating circumstances recorded by the trial court are as follows:-
18. "If it were to be her first offence, the court could have taken a lenient view, but as mentioned above the accused is a serial killer and popularly called as Mallika @ Cyanide Mallika. In fact, during the relevant period she had created a great panic in the mind of the public in general and woman folk in particular by her continuous barbaric murders of women
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 at various places. It is only after her arrest, the public took sigh of relief.
19. The accused has betrayed the trust of deceased on her, which is very shocking, annoying and it is very diabolical. The condition of the accused shows that she is mentally perfect and has capacity to appreciate the circumstances of her criminal conduct. These seven murders were planned and executed by her not immediately but at different intervals from 1999 till she was arrested. There is strong evidence against the accused to prove her overt act. It is submitted by the Public Prosecutor that prior to 1998 itself the accused had left her house having quarreled with her husband who was disgusted by her criminal activities.
20. After drawing balance sheet of aggravating and mitigating circumstances, this court has reached to an irresistible conclusion that the scale of justice tilts in favour of prosecution and there are no mitigating factors favouring the accused to reduce the sentence. The murder done in a calculated manner without provocation cannot but shock the conscience of the society, which must abhor such heinous crime committed on helpless innocent lady. There is no sign of repentance. The antecedents of the accused and her subsequent conduct indicate that she is a menace to the society and is incapable of rehabilitation. The offences committed by the accused were neither under duress nor on provocation. She did not feel any remorse in regard to her actions, as she repeatedly
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 involved in committing the offence of murder and robbery. The murder was cold- blooded and brutal without any provocation. Her criminal act discloses she is dangerous person to the society. Besides, the crime committed by her is a brutal diabolic act revolting against the norms of humanity, the human relationship and social set up.
21. The punishment imposed also respond to the society's cry for justice against the criminal. While considering the punishment to be given to the accused, the court should be alive not only to the right of the criminal to be awarded just and fair punishment by administering justice tempered with such mercy as the criminal may justly deserve, but also to the rights of the victims of the crime to have the assailant appropriately punished and the society's reasonable expectation from the court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused. The aggravating factors at Sl.Nos.1, 2, 3, 4, 10 to 13 are applicable to this case. With regard to the submission made by the accused requesting for leniency, it cannot be considered in view of the discussion already made herein above. In the facts and circumstances of the case, the crime committed by the accused falls in the category of rarest of rare cases for which the extreme penalty of death is fully justifiable."
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52. Further, the Trial Court has considered the parameters and the guidelines laid down in the Constitution Bench decision in BACHAN SINGH vs. STATE OF PUNJAB, reported in (1980) 2 SCC 684 as well as MACHHI SINGH & Others vs. STATE OF PUNJAB, reported in 1983 3 SCC 470 and having come to the conclusion that the facts proved against the accused satisfy the parameters laid down in the above decisions, has held that the case on hand qualifies to be a "rarest of rare case".
53. Applying the aforesaid principles as laid down by the Hon'ble Supreme Court in case of Bachan Singh's case and Machhi Singh's case, it can be seen that, in the present case, the accused came to the house of deceased took her to Ghati Subramanya Temple, where she hired room No.5 in Arya Vysya Choultry and committed her murder by strangulation. We are therefore of the considered view that the act of the accused would certainly be the one which shocked the collective conscience of the society, but would not fall in the category of rarest of rare cases.
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54. The next question that we will be called upon to answer is that, whether in the facts and circumstances of the case, imposition of death penalty on the accused, would be warranted or not?
55. The Hon'ble Supreme Court, in the case of Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka reported in (2008) 13 SCC 767, has observed thus:
"90. Earlier in this judgment it was noted that in the decision in Shri Bhagwan [(2001) 6 SCC 296 : 2001 SCC (Cri) 1095] there is a useful discussion on the legality of remission in the case of life convicts. The judgment in Shri Bhagwan [(2001) 6 SCC 296 : 2001 SCC (Cri) 1095] , in SCC para 22, refers to and quotes from the earlier decision in State of M.P. v. Ratan Singh [(1976) 3 SCC 470 : 1976 SCC (Cri) 428] which in turn quotes a passage from the Constitution Bench decision in Gopal Vinayak Godse [AIR 1961 SC 600 : (1961) 3 SCR 440]. It will be profitable to reproduce here the extract from Ratan Singh [(1976) 3 SCC 470 : 1976 SCC (Cri) 428] : (SCC pp.
473-74, para 4) "4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of Maharashtra [AIR 1961 SC 600 : (1961) 3 SCR 440] ,
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 where the Court, following a decision of the Privy Counsel in Pandit Kishori Lal v. King Emperor [(1944-45) 72 IA 1 : AIR 1945 PC 64] observed as follows: (AIR pp. 602-03, paras 4-5) '4. ... Under that section a person transported for life or any other terms before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.
5. If so the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Penal Code, Code of Criminal Procedure or the Prisons Act. ... A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life.' The Court further observed thus: (AIR pp. 603-04, paras 7-8) '7. ... But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. ... Under the said rules the order of an appropriate Government under Section 401, Criminal Procedure Code, are a prerequisite for a release. No other rule has
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.
8. ... The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.' It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period the prisoner's death and remissions given under the Rules could not be regarded
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 as a substitute for a sentence of transportation for life."
Further, in para 23, the judgment in Shri Bhagwan [(2001) 6 SCC 296 : 2001 SCC (Cri) 1095] observed as follows: (SCC pp. 306-07) "23. In Maru Ram v. Union of India [(1981) 1 SCC 107 : 1981 SCC (Cri) 112] a Constitution Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in Section 433-A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, in Laxman Naskar v. State of W.B. [(2000) 7 SCC 626 : 2000 SCC (Cri) 1431], after referring to the decision of Gopal Vinayak Godse v. State of Maharashtra [AIR 1961 SC 600 : (1961) 3 SCR 440], the Court reiterated that sentence for 'imprisonment for life' ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitle the convict to be released automatically before the full life term if served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose."
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91. The legal position as enunciated in Pandit Kishori Lal [(1944-45) 72 IA 1 : AIR 1945 PC 64], Gopal Vinayak Godse [AIR 1961 SC 600 : (1961) 3 SCR 440], Maru Ram [(1981) 1 SCC 107 : 1981 SCC (Cri) 112], Ratan Singh [(1976) 3 SCC 470 : 1976 SCC (Cri) 428] and Shri Bhagwan [(2001) 6 SCC 296 : 2001 SCC (Cri) 1095] and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.
92. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years' imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all.
93. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898] besides being in accord with the modern trends in penology.
94. In the light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be."
(emphasis supplied)
56. It can thus be seen that the Court found that there might be certain cases wherein the Court may feel that the case just falls short of the rarest of the rare category and may
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission which normally works out to a term of 14 years would be grossly disproportionate and inadequate. The Hon'ble Supreme Court in catena of decisions held that the Court cannot be limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death. It has been held that the Court would be entitled to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order.
57. The Hon'ble Supreme Court, in the case of Shankar Kisanrao Khade v. State of Maharashtra reported in (2013) 5 SCC 546, after referring to various cases, adopted the middle path and commuted the death penalty into sentence for the rest of the life without remission. Further, in some of the cases, it was directed that only after the convict undertook
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 sentence for a fixed period as directed without remission, her case for premature release could be considered.
58. The Hon'ble Supreme Court, in the case of Gandi Doddabasappa alias Gandhi Basavaraj v. State of Karnataka reported in (2017) 5 SCC 415, wherein the accused had committed murder of his daughter, who was in the advanced stage of pregnancy, though upheld the conviction of the accused under Section 302 IPC, nevertheless commuted the sentence from capital punishment to imprisonment for life.
59. In the case of Prakash Dhawal Khairnar (Patil) v. State of Maharashtra reported in (2002) 2 SCC 35, the appellant was a Senior Scientific Assistant. He wiped out his brother's entire family. The Hon'ble Supreme Court found that this was done by him on account of frustration as his brother was not partitioning the alleged joint property. Though the Hon'ble Supreme Court held that the crime was heinous and brutal, but it could not be considered to be 'rarest of rare' case. The Hon'ble Supreme Court held that, it is difficult to hold that accused is a menace to the society and that there is no reason to believe that he cannot be reformed or rehabilitated. The
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 Hon'ble Supreme Court, considering the facts and circumstances of the case, set aside the death sentence and directed that he shall suffer imprisonment for life but shall not be released unless he served at least 20 years of imprisonment including the period already undergone by him.
60. In the case of Mohinder Singh v. State of Punjab reported in (2013) 3 SCC 294, the Hon'ble Supreme Court observed thus:
"25. It is well-settled law that awarding of life sentence is a rule and death is an exception. The application of the "rarest of rare" cases principle is dependent upon and differs from case to case. However, the principles laid down and reiterated in various decisions of this Court show that in a deliberately planned crime, executed meticulously in a diabolic manner, exhibiting inhuman conduct in a ghastly manner, touching the conscience of everyone and thereby disturbing the moral fibre of the society, would call for imposition of the capital punishment in order to ensure that it acts as a deterrent. While we are convinced that the case of the prosecution based on the evidence adduced confirms the commission of offence by the appellant, however, we are of the considered opinion that still the case does not fall within the four corners of the "rarest of rare"
cases."
61. In the said case, the accused had committed murder of his wife and daughter. However, the Hon'ble Supreme Court
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 observed that in the facts and circumstances, it could not be said that imposition of death penalty was the only alternative and commuted the order of death sentence confirmed by the High Court to life imprisonment.
62. Recently, the Hon'ble Supreme Court, in the case of Sundar @ Sundarrajan v. State by Inspector of Police reported in 2023 SCC OnLine SC 310, held that 'rarest of rare' doctrine does not require that in such a case only death sentence has to be imposed. The Hon'ble Supreme Court held that, while considering as to whether the death sentence is to be inflicted or not, the Court will have to consider not only the grave nature of crime but also as to whether there was a possibility of reformation of a criminal.
63. It is a settled position of law that, while sentencing, the Court is not required to apply only the 'crime test' but also the 'criminal test'.
64. This Court, in the present case, vide order dated 20.11.2023, had called for the report from Central Prison, Belgaum, about the conduct and behaviour of the accused and the mental status report of accused.
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65. As per the Prison Conduct Report submitted by the Chief Superintendent, Central Prison, Belagavi, Hindalaga, the prisoner Smt. Mallika, aged about 59 years, has been convicted in S.C.No.290/2008 and sentenced to death and presently detained in Central Prison, Belagavi from 06.08.2012 till date. During this period, she has no history of any kind of prison offence. The report further shows that she has not involved in any form of quarrels or fights in prison. The report shows that earlier she had not adjusted with co-prisoners in prison, but at present, her behaviour and conduct is normal with co-prisoners and prison officials. She is showing inclination to reform herself. She has cordial relations with other prisoners in her barrack and follows the Prison Rules. She observes the prison timings and assists the prison administration as well.
66. The prison authorities also submitted mental status examination report issued by psychiatrist at Belagavi Institute of Medical Science. As per the said report, the accused is conscious and oriented to time, place and person and is co- operative. Her general appearance and behaviour are good. The accused is maintaining her daily activities adequately. As per the said report, accused mingles with other inmates and
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 does routine works in the jail. The accused expressed her wishes to stay in an 'ashram' after jail term, the accused is having a tendency for reformation. As per the opinion of staff of the prison and records of jail hospital, the accused can undergo reformation.
67. The Hon'ble Supreme Court, in the case of Rajendra Pralhadrao Wasnik v. State of Maharashtra reported in (2019) 12 SCC 460, after referring to various earlier judgments, has held that in awarding death penalty, it is mandatory that the probability that the convict can be reformed and rehabilitated in the society, must be seriously and earnestly considered. It has been held that it is one of the mandates of the "special reasons" requirement of Section 354(3) Cr.P.C.
68. The Hon'ble Supreme Court, in the cases of Bachan Singh's case(supra), Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra reported in (2009) 6 SCC 498, Chhannu Lal Verma v. State of Chhattisgarh reported in (2019) 12 SCC 438, Rajendra Pralhadrao Wasnik's case (supra) and Manoj and Others v. State of Madhya
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 Pradesh reported in (2023) 2 SCC 353, has consistently held that it is the obligation of the prosecution to prove to the Court through evidence that there is a probability that the convict cannot be reformed or rehabilitated. Undisputedly, the prosecution has not placed any material in that regard either before the trial court or before this Court. Per contra, the Reports by the Central Prison, Belagavi and Belagavi Institute of Medical Science, Belagavi, would show that there is possibility of the accused being reformed.
69. No doubt, there is history of previous conviction insofar as accused is concerned. However, the Hon'ble Supreme Court, in the case of Rajendra Pralhadrao Wasnik's (supra), has held that the history of the convict by itself cannot be a ground for awarding her death penalty.
70. As discussed hereinabove, the accused is aged about 59 years as on 10th December 2023. The Hon'ble Supreme Court, in the case of Babasaheb Maruti Kamble v. State of Maharashtra reported in (2019) 13 SCC 640, has held that old age is one of the mitigating circumstances in favour of the convict.
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71. The Hon'ble Supreme Court, in the case of Irappa Siddappa Murgannavar v. State of Karnataka reported in (2022) 2 SCC 801, has held that the period of incarceration while sitting in a death row is also one of the mitigating circumstances. In the present case, convict Mallika has been incarcerated for a period of 17 years.
72. The Hon'ble Supreme Court, in the case of Mohinder Singh's case (supra), has held that 'the rarest of the rare case' comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of 'the rarest of the rare case'. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society.
73. Taking into consideration all these factors, we find that the present case is not a case wherein it can be held that imposition of death penalty is the only alternative. Another reason that weighs with us is that from the evidence of the witnesses, it is clear that the role attributed to the accused has
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 been similar and that the accused took the deceased to the room, where she committed her murder by strangulation and robbed her belongings.
74. The trial court imposed capital sentence on the accused. As already observed hereinabove, the Hon'ble Supreme Court, in the case of Rajendra Pralhadrao Wasnik's (supra), has held that past conduct does not necessarily have to be taken into consideration while imposing death penalty. At the cost of repetition, the role attributed in the evidence of the circumstantial witnesses against the accused is identical. In that view of the matter, we find that the trial Court was not justified in imposing death penalty on the accused. If the judgment of the trial Court is maintained, it would lead to an anomalous situation. Whereas the accused would be entitled for consideration of her case for remission and pre-mature release on completion of a particular number of years in accordance with the relevant rules and the accused will not have to face death penalty.
75. We are of the considered view that the present case would fall in the middle path as laid down in
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NC: 2024:KHC:10407-DB CRL.A No. 635 of 2018 C/W CRL.RC No. 3 of 2018 Swamy Shraddananda's case (supra), followed by the Hon'ble Supreme Court in various judgments. We find that interest of justice would be met by converting death penalty imposed against the accused into life imprisonment i.e. actual imprisonment for a period of 20 years without remission.
For the aforesaid reasons, we pass the following:-
ORDER
i) Criminal Appeal No.635 of 2018 is partly allowed. The judgment of conviction dated 20.01.2018 and the order on sentence dated 27.01.2018 passed in S.C.No.290/2008 by the Court of I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, convicting the accused for the offence punishable under Section 302 of IPC is hereby confirmed.
However, death penalty imposed on her is converted into imprisonment for a fixed term of 20 years, including the period already undergone by her, without remission;
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ii) In other words, the case of the accused would not be considered for her pre-mature release unless she completes the actual sentence of 20 years; and
iii) In view of partly allowing Criminal Appeal No.635 of 2018, Criminal Referred Case No.3 of 2018 is dismissed;
iv) Pending application(s), if any, shall stand disposed of in the above terms.
Sd/-
JUDGE Sd/-
JUDGE MN List No.: 1 Sl No.: 1