S.R. Bannurmath, J.
1. This reference and criminal appeal arise from the judgment of conviction dated 29-7-2005 and sentence passed by the learned Sessions Judge, Chamarajanagar in S.C.No. 113/04. In this case, the two accused are charged, tried and convicted by the learned Trial Judge for the offences under Sections 376 and 302 both read with Section 34 of the I.P.C. and on finding them guilty on both the counts, are sentenced to undergo imprisonment for a period of 10 years with a fine of Rs. 25,000/- for the offence Under Section 376 read with 34 of the I.P.C. and to the death punishment for the offence Under Section 302 read with 34 of the I.P.C. Since the death punishment requires confirmation by this Court, the same has been referred under Section 366 of the Criminal Procedure Code, and it has been registered as Criminal R.C. No. 8/2005. Aggrieved by the judgment of conviction and the sentence, the accused have approached this Court in Criminal Appeal No. 1394/2005.
2. The brief facts giving rise to the present case as put forth by the prosecution are as follows :
'P.W. 1 Jayamma is a resident of Badrenahalli village in Kollegal Taluk. She resided with her husband, and children PW-2 Raju, PW-10 Nagarajamma and the deceased Shivamma. Both the accused are residents of the same village. The accused-aged about 20 and 22 years respectively were sexually obsessed young people. Few months prior to the present incident, they attempted to commit rape on one Lakkamma, (daughter of PW 7 Puttegowada), but were unsuccessful. For that act, they were admonished. Later, they attempted to commit rape on PW-10 Nagarajamma (daughter of PW-1). Nagarajamma was also successful in escaping from their clutches. Though in both the incidents, the aggrieved people wanted to lodge police complaints, against the accused, at the instance of village elders and family members of these accused, instead of lodging criminal cases, only Panchayath of village elders was called on each instance and the accused were directed to mend their ways. But this warning had no effect on them. Emboldened by escape from punishment on those two incidents, they committed rape of Shivamma, a young girl of hardly 18 years (daughter of PW-1), and to avoid detection, committed heinous and brutal act of her murder.
Coming to the incident in question, on the morning of 15-10-2001, as usual practice deceased Shivamma went to their land to dump manure situated near her house. As she did not return, PW-1 went in search of her after some time. When Shivamma was not seen in the land, P.W. 1 began to call her by name. At that time, the two accused were spotted by her in the standing crop getting up and running away. That was seen by P.Ws. 8 and 9, two coolie women working in nearby land. Suspecting untoward incident, when PW-1 went near the spot, she saw the body of Shivamma lying on the ground with clothes disarrayed. Noticing that Shivamma was dead, P.W. 1 raised hue and cry and went towards the village calling people for help. Attracted by her cries, her son PW-2 and other villagers including PW-3 Chikkiregowda came to the spot and on learning about the incident, especially the fact that the accused had got up at the spot where the dead body was found and ran away, they went in search of the accused. In the meanwhile, PW-5 Narayana Gowda the brother of PW-1 (maternal uncle of the deceased) who is also residing in the same village came to the house of PW-1 and on suspecting the role of the accused in the rape and murder of Shivamma, wrote down the statement of PW-1 and after taking her L.T.M., took the same to the jurisdictional police at Rampur police station. PW-20 M.K. Ali, the S.H.O. of Rampur police station on receipt of the information of the crime, after accepting the written complaint as per Ex.P1, registered a case in Crime No. 86/01 for the offences Under Section 376, 302 both read with 34 of the I.P.C. against these two accused and took up investigation.
After registering the case, preparing the F.I.R, sending the same to the superior officers and the Court, the Investigating Officer along with staff, went to the place of the incident and held the necessary mahazars like spot mahazar, seizure of certain articles found near the scene of offence. After inquest proceedings, the body of Shivamma was taken for autopsy. In the meanwhile, on learning about the culpability of the accused in the crime, the village youths went in search of the accused. Accused No. 1 was found at the bus stand while attempting to board a bus. He was brought and was interrogated. His disclosure confirmed the involvement of accused No. 2 as the co-participant in the crime. People went in search of the second accused who was found hiding in the house. Both of them were brought and kept in confinement in the house of one Shivanna near the spot. On arrival of the investigating officer, after the preliminary investigation as already noted, the accused were taken into custody and they were sent for medical examination. The post mortem examination on the dead body of Shivamma was carried out by Dr. Pushpalatha, PW-11 alone with Dr. Basavaraju PW-12. It confirmed rape on Shivamma and that she had been killed by strangulation. The accused were examined by the doctor PW-12 who noted the nail scratch marks on their bodies and entered same in the register. As part of investigation, PW-13 Syed Ameer Pasha, a photographer was summoned and he took photographs of the scene of offence as well as the dead body. Similarly PW-15 Siddappa, Junior Engineer prepares the sketch of scene of offence as per Ex.P15. After recording the statements of material witnesses including the relatives and the other villagers who could throw light on the incident and after receipt of all material reports, charge sheet was filed against these two accused for offences punishable under Sections 376 read with 34 and 302 read with 34 of the IPC.'
3. On committal and after going through the charge sheet material, the learned Sessions Judge framed charge against both the accused for offences punishable Under Section 376, 302 both read with 34 of the I.P.C. As the accused denied the charges and claimed to be tried, they were tried in S.C.No. 113/04.
4. In order to establish the guilt of the accused, the prosecution relied upon the evidence of 20 witnesses and got marked documents, Ex.P.1 to P19 and material objects, M.Os. 1 to 16. On the conclusion of the evidence of the prosecution, the accused were examined Under Section 313 of the Criminal Procedure Code. Apart from denying the entire prosecution case as false, no explanation or particular defence has been taken by the accused. No documentary or oral evidence has been led on behalf of the accused. After hearing both the sides, the Trial Court not only found both the accused guilty on both the counts, but after hearing the accused on sentence, held that this was one of the cases falling under the category of 'rarest of rare cases' and sentenced both the accused to capital punishment for the offence punishable under Section 302 read with 34 of the IPC as well as imprisonment for the offence Under Section 376 read with 34 of the I.P.C. Hence the present reference for confirmation of death sentence and the appeal by the accused challenging conviction and sentence.
5. Sri M.S. Rajendra Prasad, learned Counsel appearing for both the appellants, while taking us through the entire prosecution evidence and the findings of the Trial Court inter-alia contended that the findings and the conclusion of the Trial Court in the impugned judgment are contrary to law and the evidence on record and there was absolutely no material evidence adduced by the prosecution to connect the accused with the crime. It is submitted by him that there are no eye witnesses to the incident of alleged rape and murder and as such entire prosecution evidence being circumstantial in nature, proof adduced by the prosecution cannot be termed as beyond reasonable doubt. He submits that not only each link in the chain of circumstances is required to be proved to the hilt, but, such proof should not leave any doubt in the mind of the Court that the offence has been committed by the accused and accused only. Pointing out to the fact that Badrenahalli being a small village and taking into consideration the alleged crime having taken place in the morning, the learned Counsel contended that this was highly improbable, as nobody will commit rape and murder in broad day light, especially in the morning hours that too near the village. The learned Counsel contended further that if really the accused had committed such an offence, they would not have been found in the village when the people were allegedly searching for them, unless they were innocent. Taking us through the evidence of the prosecution witnesses especially PW-1, PWs-8 and 9, it is contended by him that PWs. 1, 8 and 9 are the witnesses examined by the prosecution to show the presence of the accused at the spot and their act of running away from the spot immediately after the arrival of P.W. 1. He argued that the fact that P.Ws. 8 and 9 do not speak about the arrival of PW-1 at the spot immediately after the incident and P.W. 1 in turn does not speak about the arrival of P.W.s 8 and 9, it creates doubt about the story of the prosecution, particularly when the statements of P.Ws. 8 and 9 have been recorded three days after the incident. The learned Counsel, therefore, submits that the evidence of PWs-8 and 9 ought to have been discarded. Similarly, on the very same ground it is contended that if really PW-1 was present and saw the accused running away, PWs. 8 and 9 ought to have mentioned either before the Court or even during the investigation as to their seeing PW-1 present. In the absence of this material which is vital to the prosecution evidence, it is contended that the Trial Court ought to have rejected evidence of PWs. 1, 8 and 9, as it is concocted or atleast unbelievable evidence. It is submitted that if the evidence of these three witnesses is kept aside, then there is every possibility that only on suspicion and because of the alleged earlier attempts said to have been made by these accused on Lakkamma, Nagarajamma (daughter of PW-1), the accused are suspected and involved in the present case as the culprits. The Learned Counsel also analysed the evidence of prosecution witnesses to contend that the evidence of these witnesses is discrepant and contradictory in nature. He contended that there is variance as to when the accused were apprehended, who are the persons, that came to the spot attracted by the cries of PW-1 etc. These discrepancies and contradictions according to the learned Counsel go to the root of the prosecution evidence affecting the credibility and thereby making it unacceptable one. It is submitted that the Trial Court has been carried away by the alleged brutal murder of a young girl and has convicted the accused only on moral grounds, without any material evidence. It is also submitted that most of the prosecution witnesses examined are closely related witnesses to the victim and their evidence ought to have been discarded as that of interested witnesses. On these, among other grounds, it is submitted that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt and by accepting such discrepant and contradictory evidence, the Trial Court has acted not only illegally but has erred in holding the accused guilty of the offences. It is lastly contended that the learned Trial Judge has emotionally considered the case as one of the rarest of rare category, though this is not covered by the instances referred to in Macchi Singh's case and has sentenced two young accused to death punishment. On these among other grounds, it is submitted that the entire evidence requires reconsideration and the accused are entitled to the benefit of doubt and consequent acquittal.
6. On the other hand, Sri N. Rudramuni, learned Additional Government Advocate assisted by Sri S. Mariswamy Gowda, who conducted the prosecution in the Trial Court as Public Prosecutor, argued in support of the prosecution case, its evidence, reasoning and the conclusion arrived at by the Trial Court.
7. There is no dispute about the nature of death of Shivamma on the morning of 15-10-2001 being homicidal amounting to murder. The evidence of the prosecution witnesses especially the relatives and the villagers, the inquest proceedings and more importantly the evidence of the medical officers, who conducted autopsy and their report as per Ex.P15 clearly show that the deceased a young girl of hardly 18 years was found dead by strangulation. The doctors have noticed a ligature mark around the neck and according to them the cause of death was due to asphyxia as a result of strangulation. It is also to be noted that the evidence of the prosecution witnesses, the inquest proceedings and the photographs of the dead body also show that when the dead body was found by the mother and other villagers, there was a red duppatta (Dhavani) tightly encircling with a knot around neck. Even on dissection the doctor had noticed that larynx and trachea had fractured contusions around the neck. These are clear signs of strangulation. This observation and the opinion of two expert doctors has not been controverted or disputed by the caused when these witness were subjected to cross examination. Hence in the absence of any plea or evidence to show that the death was natural or suicidal, in our view, the prosecution has succeeded in showing that Shivamma met with homicidal death amounting to murder on the morning of 15-10-2001. It is also to be noted at this stage itself that apart from the ligature mark noticed around the neck of the deceased, the doctors PWs. 11 and 12 have noticed the following injuries clearly indicating the act of rape on Shivamma:
Seven bite marks by human teeth on breast, lower abdomen and thighs.
Presence of nail marks on the neck, face, breasts, abdomen, hands, buttocks, thighs and back at scapular region.
Dried seminal stains on the external genitalia, thighs and clothes of the deceased.
Rupture of hymen of recent origin as well as bruising of vagina and swelling of inflammation of vulva.
8. Presence of seminal stains on the external genitalia, tights and clothes of the deceased coupled with rupture of recent origin indicate sexual intercourse before death.
9. We may observe here that in the absence of any cross examination in this regard to show that bite marks on several places of the body and other marks were due to any other reason, they clearly point out to the commission of sadistic rape of the girl. The presence of scratch marks, bite marks with nails indicate that the sexual intercourse on the victim was against her wish or will and she had struggled to protect her honour. On considering and re-appreciating this material, it leaves no doubt in our mind that the victim was raped and them murdered by strangulation with the help of divans she was wearing. As such, the conclusion of the Trial Court in this regard has to be accepted as correct conclusion. But the main question before the Trial Court was who committed this ghastly act of rape and murder; and more importantly whether the prosecution had shown that it was the accused and accused alone who were the authors of the crime in question. On careful consideration of evidence, the Trial court has found that the evidence had conclusively shown that the accused had committed this ghastly crime. We have to reconsider that evidence in the light of the points urged by the learned Counsel for the appellants that this conclusion of the Trial Court was not correct.
10. As already noted, out of 20 witnesses examined by the prosecution, PW-1 Jayamma is the complainant and also mother of the deceased. PWs. 2 and 10 are the brother and sister respectively of the victim. PW-5 B.S. Narayanagowda is the maternal uncle of the deceased. PW-3 Chikkiregowda has been examined to show that when he was near a tea shop along with P.W. 2, on hearing the cries of PW-1, both went to her, enquired and saw the dead body of Shivamma. They have been examined also to speak about the earlier attempts of rape made by the accused on two different girls Lakkamma (daughter of PW-7) and PW-10 Nagarajamma. The evidence of PW5, the maternal uncle is also similar to PWs. 2 and 3. Apart from corroborating these aspects, he further states that it was he who went to the police station, handed over the written complaint of PW-1, learned about the villagers apprehending the accused and extra judicial confession stated to have been made by accused No. 1 confessing his and accused No. 2 Jadeswamy's participation in the incident in question.
11. PW 6 Puttegowda has been examined to show the movements of the victim, accused and PW.1. According to him, in the morning of 15-10-2001 while he was drinking tea in the nearby tea stall, he saw the victim going towards her land carrying manure basket. According to him, both the accused were seen following her and going in the same direction. After some time, he saw PW-1 also going towards her land and returning back crying that the accused after killing her daughter were seen running away. PW-7 Puttegowda is another important witness examined by the prosecution to show that earlier to the present incident, both the accused had tried to molest his daughter Lakkamma/Lakshmaamma. PWs 8 and 9, two coolie women have been examined by the prosecution to show that at the time of the incident, they were in a land, which is a little distance away. They heard the cries of the victim and when they looked towards the spot, they saw both the accused dragging Shivamma towards the land of Rangegowda just adjacent to the land of the victim. PW-10 Nagarjamma is another victim of the accused, who providentially escaped their attempt to molest her. Apart from describing the present incident, she had also spoken to earlier attempts made by the accused to molest her. PWs 11 and 12 are the doctors who conducted and autopsy and it is PW-12 who has also medically examined the accused and given the wound certificates. PW-13 is the photographer who took the photograph of scene of offence and the dead body. PW-15 is the junior engineer who has prepared the sketch of scene of offence as per Ex.P15 and PW-14 is the village accountant who has furnished the R.T.C. of the lands in question. PWs 18 and 19 have been examined by the prosecution to show the earlier attempts of the accused to molest other girls (Lakkamma and Nagarajamma) and their participation in the panchayath held by the village elders in that regard. However, it is to be noted that as they did not support the prosecution, they have been treated as hostile witnesses and inspite of searching cross examination by the prosecution, they have stuck to their contrary version. The remaining witnesses are mahazar witnesses and the members of the investigation team.
12. If we analyses the entire prosecution evidence and case put forth as to the involvement of the accused in the crime of rape and murder of Shivamma, it mainly consists of evidence circumstantial in nature. The circumstances put forth by the prosecution through the witnesses are:
a) Last send together of the accused and the deceased near the scene of offence.
b) The movement of the accused.
c) The rape and murder of the victim.
d) The immediate apprehension of the accused by the villagers and their extra judicial confession.
e) Medical evidence in respect of accused indicating resistance putforth by the victim and; lastly;
f) The conduct of the accused prior and after the crime.
13. To show the presence of the accused at the time and place almost near the victim, the prosecution has relied upon the evidence of Puttegowda, P.W. 6, P.W. 1 Jayamma and two independent witnesses, P.W. 8, Kalamma and P.W. 9, Rudramma. P.W. 6, Puttegowda states that on the date of the incident while he was taking tea in the morning, he saw the deceased going towards her land carrying basket of manure. He also saw that these two accused following her from a-little distance. He states that after some time he also saw P.W.1 Jayamma, the mother of the deceased going towards the land and coming back raising hue and cry over the murder of her daughter Shivamma by the accused and her seeing them running away from the spot. The evidence of this witness, so far as this aspect is concerned, except the futile suggestion that this witness is speaking falsehood as he belongs to the group of Narayana Gowda and opposed to the accused has remained unshaken, and we find absolutely no material to discard the reliable evidence of this witness as to the movements of the deceased and the accused. His statement has been immediately recorded by the police which is in conformity with what he has stated in the Court later. As such we find no reason to discard his truthful version as to the deceased going to her land followed by these two accused and later by P.W. 1.
14. The other witnesses in this regard seeing the accused with the deceased are P.W. 8 Kalamma and P.W. 9 Rudramma. It is to be noted that both these witnesses are independent witnesses in the sense neither they owe any special affection towards the deceased or her family members nor any grudge or ill will towards the deceased. According to these two witnesses, in the morning of the incident, they were going to remove the weeds in the land of one Veeramma and while they were near the land of the deceased, they heard the cries of a girl. Their attention having been drawn by those cries, when they looked towards the source of the sound, they saw that some quarrel was going on between the accused on the one hand and the deceased and they also saw the accused dragging the deceased towards the land of Rangegowda. The evidence of these witnesses is sought to be discredited by the defence on the ground that if they had really seen this part of the incident, their statements ought to have been recorded immediately by the police. On the other hand, when their evidence is recorded after about three days of the incident, it is submitted that their evidence becomes suspicious and they have to be treated as got up witnesses for the purpose of supporting the prosecution case. It is to be noted that merely because the statement of a witness is not recorded on the same day or has been recorded after gap of one or two days, that by itself does not affect the credibility of such witnesses and that itself does not make such witness a got up witness unless it is shown that this witness had some motive to implicate the accused falsely in the crime. If one peruses the cross examination of these witnesses, one finds absolutely no reason to suspect their straight forward answers or evidence. Their evidence is challenged also on another ground, namely that neither of these two witnesses. P.W.s 8 and 9 on the one hand nor P.W. 1 on the other speak about the presence of each other. It is argued that if really P.Ws. 8 and 9 had seen P.W. 1 or vise versa, in their evidence the presence of each other could have been spoken to. This again, in our view, is a mis-concept. It is to be noted that as per the evidence of these two witnesses, they were proceeding on the road towards the land of Veeramma and they had heard the cries of the deceased and had seen the accused dragging her towards the land of Rangegowda. According to them, out of fear they went ahead and it is only thereafter P.W. 1 comes near the land in search of her daughter and by then, the crime of rape and brutal murder of the deceased was over. If one sees the sequence chronologically it is quite possible that P.Ws. 8 and 9 did not see P.W. 1 or vice versa. Hence we find no merit in this contention also to reject the truthful, acceptable evidence of P.Ws. 8 and 9.
15. Even if for a moment the evidence of these two witnesses is doubted only because their statements have been recorded after three days, nevertheless it does not caste any dent to the prosecution evidence in respect of the presence of the accused near the scene of offence. In this regard, the evidence of the mother P.W. 1 by itself is sufficient to show that when the deceased did not return within a reasonable time from the land where she had gone to dump the manure, naturally the mother went in search of her daughter and on going to the field when she called up, she saw the accused suddenly getting up and running away. Her evidence is challenged only on the ground that her presence is not mentioned by P.Ws. 8 and 9 or that only because she and others suspected the alleged role of the accused in the previous incident as to the molestation of Lakkamma (daughter of P.W. 7) and Nagarajamma, who is none else than the daughter of P.W. 1. It is to be noted that if really this witness intended to falsely implicate these accused with such a ghastly crime that too mentioning the earlier attempts of the accused not only on her another daughter who is incidentally examined as P.W. 10 who appears to be unmarried at that stage, we find unless it is the bitter truth no mother would come forward to speak about the rape of her living un-married daughter to involve falsely the accused in respect of rape and murder of her another (dead) daughter. Except her seeing the accused suddenly getting up at the spot of her daughter's body and running away when she went to the field, she has not made any allegation about the rape and murder. Unless this description is truthful she has no reason to implicate the accused in the crime. She has answered in the cross examination as to the reason of her and her family members not taking action against the accused earlier. The reason being poverty and the interference of other villagers including relatives of the accused and keeping in view the young age of the accused. This cannot, by any imagination be called as pre-conceived notion of a mother to falsely implicate the accused against whom she had no other enmity or grudge. As disclosed from the prosecution evidence and cross examination of P.W. 1 that her house is just nearby the scene of offence and as such her going to the land in search of her young teenaged daughter cannot be said to be either improbable or impossible. After careful scrutiny of her entire evidence including the answers given in the searching cross examination, we find absolutely no reason to discard her evidence, which according to us, is truthful and acceptable one. Thus through the evidence of P.W. 6 Puttegowda, P.W. 8 Kalamma, P.W. 9 Rudramma and P.W.1 Jayamma, the prosecution has shown the presence of the accused and the deceased near the scene of offence.
16. This presence of the accused at the spot or involvement of the accused with the crime especially rape is further substantiated by the prosecution from the evidence of the doctors. We have already noted that there is no much dispute as to the deceased being subjected to rape. There is sufficient, clear and un-challenged medical evidence in this regard. But so far as the involvement to the presence or the participation of the accused is concerned, we further have the evidence of Dr. P. Basavaraju, who has examined the accused at about 7.45 in the evening when produced by the police. So far as the accused No. 1, Shivu is concerned, this doctor has noticed the abrasive wound on the back, hip, legs and arms. He has also noted nail scratch marks on his face, neck, chest, inner thigh and the genital organ. Further he has noticed bite marks on his right hand and stomach. Similarly so far as accused No. 2 Jadeswamy is concerned, the Doctor has noted nail scratch marks and abrasion. These are indicative of the fact that the victim while fighting for her honour had tried to defend herself with the only available weapons like nails and teeth, which has left indelible marks on the culprits. More damaging is the finding of soft skin pieces and clotted blood particles in the teeth of these accused. If one peruses the post mortem report, the doctors have specifically noted that there were deep bite marks on all over the victim more prominent were on left cheek, breasts and thighs. P.W. 12 in this regard has specifically stated that by measuring the bite marks on the dead body and by considering the skin and the blood particles found in the mouth of the accused and their denture it is possible even to identify which bite marks was caused by which of the accused. This positive indicative evidence of two expert doctors who were subjected to cross examination, has remained practically unchallenged. In our view these marks of bite and nail scratches were left by the victim while defending her honour and life and similarly the fact that the victim was assaulted with teeth would also indicate the brutal and sadistic nature of the rapists. These corresponding injuries, in the absence of any explanation whatsoever by themselves are sufficient to prove that it is the accused and accused alone who committed the rape and fearing disclosure later murdered Shivamma. Once this conclusion is reached, we need not go further.
17. However, even the additional material evidence adduced by the prosecution, especially regarding the way the accused were apprehended not by the police, but by the enraged villagers within a short time of the disclosure of crime by P.W. 1 and detaining them in the nearby house till the arrival of the police are spoken to by all the prosecution witnesses. Even on these proved facts, there is no explanation by the accused in the sense neither the accused stated that they were some where else at the time of the incident, nor was their apprehension by the villagers was after lapse of long time. This conclusively shows that immediately after coming to know of the incident and especially the culpability of these accused as disclosed by P.W. 1, the villagers being enraged, went in search and caught hold of these accused and handed them over to the police on their arrival. In this regard, the arguments of the learned Counsel for the defence that if really the accused had committed such a crime, they would not have been found in the place is meaningless. Infact the accused No. 1 was caught while he was attempting to board a bus at the bus-stand and as such this is a clear attempt by him of fleeing from the village itself. Nodoubt the accused No. 2 was found in the house, but again that would show the possibility of his hiding and not of innocence.
18. Added to this, even the previous conduct of the accused has also shown their mental attitude. P.W. 1 has stated that on earlier occasion, the accused tried to outrage the modesty of her another daughter, Nagarajamma. Nagarajamma has been examined as P.W.10 who corroborates the version of her mother. As is often noted by the Courts including the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, : 1983CriLJ1096 wherein it is observed as follows:
'A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives friends and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated.'
In view of these unassailable fact situation when in our country, rarely the victims of rape and their relatives are keen to bring out the incident before public and when on the face of the dishonour when they come before the Court and depose, we must accept it without any second thought. Similarly the prosecution witnesses including P.Ws. 1, 2, 3, 5 and 6 have also referred to the earlier attempts of these accused on Lakki @ Lakkavva. P.W. 7 Puttegowda is none else than the father of the said Lakki @ Lakkavva. It is to be noted that at the time of trial the said Lakkavva, victim of sexual assault by the accused was married and was a mother of a young child of six months. As already noted, no father would come to depose falsely as to sexual attack made on his daughter that too after lapse of time and when the girl has been happily married and living with her husband and child causing embarrassment to her unless it is the truth. The father would be aware of the possible consequences of his disclosure statement including affecting the marital life of his daughter at her husband's house. The very fact that inspite of such possibility, he has come forward and has deposed before the Court as to the earlier conduct of the accused would require appreciation and that by itself shows that his evidence is genuine and wholly reliable.
19. Taking into consideration all these aspects, we find that there is no scope to presume the innocence of the accused, and they have to pay for the crime they have committed. The Trial Court has considered these aspects in detail. After re-appreciation of the entire evidence, we find that the conclusion arrived at by the Trial Court, namely about the guilt of the accused having been proved beyond reasonable doubt, is just and correct.
20. In the result, we find no merit in the appeal.
21. Heard regarding sentence. This is a case where the accused have been awarded death sentence by the Trial Court for the offence of murder and the same is before us for confirmation. We feel it necessary to hear the accused as well as further arguments of their counsel on the sentence. We are informed that the accused are presently lodged at the Central Prison, Belgaum. The transportation would take some time. Hence in order to facilitate the State to make arrangements for production of the accused before us for hearing regarding sentence, we adjourn the matter to 7-11-2005.
The Registrar (Judicial) is directed to issue body warrant for securing the presence of the accused before this Court at 10.30 a.m., on 7-11 -2005. Copy of this order shall be furnished immediately to the Registrar (Judicial) as well as the Additional Government Advocate.
Before conclusion, we place on record the efforts taken by the investigating Officer Sri M.T. Ali, Inspector of Police, Rampur Police Station, in conducting investigation methodically as well as the efficient way the case had been presented before the Trial Court by the learned Public Prosecutor, Sri S. Mariswamy Gowda.
Crl.R.C. No. 8/2005 c/w.
Crl.A.No. 1394/2005
SRBMJ and ACKJ:
7-11-2005
Order Regarding Sentence
1. We have heard the arguments of Sri Rajendra Prasad, learned advocate for appellants and Sri Rudramuni, learned Additional Government Advocate for State regarding sentence. While praying for confirmation of the death sentence, it is submitted for the State that this is one of the 'rarest of rare' cases keeping in view the guidelines laid down by the Hon'ble Supreme Court in Machhi Singh v. State of Punjab, : 1983CriLJ1457 followed in the case of State of U.P. v. Satish, : 2005CriLJ1428 . On the other hand, the plea of the defence is that keeping in view the fact that retributive punishment of death is no more in vogue and taking into consideration the present demand for abolition of death penalty, especially considering young age of the appellants, the death punishment may not be confirmed and imposition of lesser punishment i.e. imprisonment for life would meet the ends of justice.
2. To highlight his argument, relying upon the decisions of the Hon'ble Supreme Court in the cases of:
Ediga Anamma v. State of A.P, : 1974CriLJ683 .
Har Dayal v. State of U.P., : 1976CriLJ1578 .
Saveshwar Prasad Sharma v. State of M.P., : 1978CriLJ18 .
Shidagouda Ningappa Ghandavar v. State of Karnataka, : 1981CriLJ324 .
it is contended that 'life imprisonment' is a rule and death punishment is an exception.
3. The learned Counsel for the appellants referring to the decision in the case of Francis @ Ponnan v. State of Kerala, : 1974CriLJ1310 argues that while considering whether the case merits the less severe of the two penalties prescribed for murder, a history of relations between the parties concerned, the background, the context or the factual setting of the crime and the strength and nature of motives operating on the mind of the offender are relevant considerations required to be considered by the Court. Relying on observation of the Apex Court in the case of Rajinder Singh v. State of U.P., 1978 U.J. (SC) 802 it is submitted that 'death caused by the accused should not necessarily end in the end of the accused'
4. Taking us through the following pronouncements :
Ujjagar Singh v. Union of India, : 1981CriLJ1690
Javed Ahmed v. State of Maharashtra, : 1984CriLJ1909 .
the Learned Counsel submits that as in those cases the Hon'ble Supreme Court altered the death sentence to life imprisonment taking into consideration young age of the accused therein, the present appellants being hardly of 21, and 23 years age and considering the fact that they are uneducated, rural, rustic people corning from poor section of society, this Court may give a chance to them to live and atone for the grievous wrong committed by them. The learned Counsel, also relying upon an unreported judgment of this Court in Crl. A.No. 1457/03 submits that, in that case even though the accused therein were found guilty of murder and dacoity, this Court reduced the death punishment to life imprisonment taking into consideration their age. He urges that similar lenient view may be taken in the present case also.
5. At the outset, we note that in every case which came up for consideration, the Supreme Court and this Court have mainly taken into consideration peculiar facts and circumstances of each case to decide the quantum of punishment. In fact considering all earlier decisions, including those decisions referred by the appellants' learned advocate, Constitution Bench of five Hon'ble Judges of the Supreme Court, in the case of Bachhan Singh v. State of Punjab, : 1980CriLJ636 have laid down broad illustrative guidelines in the matter, which we will refer to during the discussion.
6. We have given our anxious consideration to the question of sentence. It is well settled that while considering the question of sentence to be imposed, the Courts are required to take into consideration the nature of crime and the effect of the act of the accused on the society. The ultimate aim of criminal law is protection of right to personal liberty against its invasion by others-protection of the weak against the strong, protection of law-abiding people against lawless, protection of peaceful against the violent.
7. The Hon'ble Supreme Court in the case of Ravaji v. State observed thus 'It is the nature of and gravity of the crime but not the criminal which are germane for consideration of appropriate punishment. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against individual victim but also against the society.
8. Lord Denning appearing before the Royal Commission on 'Capital Punishment' expressed following views 'punishment is the way in which society expresses its denunciation of wrongdoing and in order to maintain the respect for law, it is essential that punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of the citizen. For them it is a mistake to consider the object of punishment as being deterrent or in affirmative or preventive and nothing else. The truth is that some crimes are so outrageous that society insists adequate punishment because the wrongdoer deserves it, irrespective of whether it is deterrent or not.'
9. The Hon'ble Supreme Court in the case of Sushil Murmu v. State of Jharkand, 2004 Crl. L.J. 658 observed thus 'the principle of proportion between crime and punishment is a principle of just deserts that serves as the foundation of every criminal sentence that is justifiable.' As a principle of criminal justice, it is hardly less familiar or less important than the principle that only the guilty shall be punished. Indeed the requirement that punishment shall not be disproportionately great, which is called as the principle of just deserts is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what the criminal's conduct deserves is a punishment without guilt. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion in arriving at correct decision on the sentence in each case, presumably to permit sentences that reflect more supple consideration of culpability that are raised by the special facts and circumstances of each case. The Courts in essence affirm that punishment which always ought to fit the crime; yet in practice sentences are determined also by other considerations, like correctional need of the perparator. One of the considerations is the desirability of keeping the accused out of circulation and sometimes even the tragic results of his case. The proportion between crime and punishment is a goal respected in principle and in spite of different views, it remains a strong influence in the determination of sentence. Anything less than a penalty of greatest severity for any serious crime is thought to be a measure of tolerance that is unwarranted and unwise.'
10. There is a general misconception that death penalty is given only as punitive and retributive measure based on earlier concept of eye for eye or life for life. But in our view, now there remains no scope for debate on such matter. Earlier, in cases of murder, death penalty was considered as an alternate punishment for life imprisonment. Under Section 354(3) Criminal Procedure Code, the Court is required to give reasons for the sentence to be awarded and in the case of death penalty, special reasons are required to be stated. Therefore, awarding of life imprisonment is a general rule and only if there are valid and special reasons, warranting passing of extreme penalty of death, only under the special facts and circumstances, the same may be imposed.
11. In the case of Bachan Singh v. State of Punjab (Supra), it is laid down that 'a real and abiding concern for the dignity of human life postulates resistance in taking a life through law's instrumentality and that it ought not to be done save in the rarest of a rare case when the alternate option is unquestionably foreclosed'. It is therefore clear that in effect the law being followed by the Courts in imposing the death penalty is only in the rarest of rare cases and such imposition of death punishment is only when the Court finds that no other punishment would be appropriate for the gruesome act under the facts and circumstances of the case.
12. The following guidelines which emerge from Bachan Singh's Case (Supra) will have to be applied to the facts of each individual case when the question of imposition of death sentence arises vide Machhi Singh and Others (Supra).
I. The extreme penalty of death need not be inflicted except in rarest of rare case of extreme culpability.
II. Before opting for the death penalty the circumstances of the offender are also required to be taken into consideration along with the circumstances of the crime.
III. Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the case, and provided and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
IV. A balance sheet of aggravating and mitigating circumstances has to be the drawn up and in doing so the mitigating circumstances had to be accorded full weightage and its just balanced has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
It is further observed that in 'rarest of rare' cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, that sentence can be awarded. The community may entertain such sentiment in the following circumstances.
1. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arose intense and extreme indignation of the community;
2. When the murder is committed for a motive, which evinces total depravity and meanness, e.g. murder by a hired assassin for money or reward or a cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course of betrayal of the motherland.
3. When the murder of a member of scheduled caste or minority community etc., is committed not for personal reasons hut in circumstances which arose social wrath, or in case of bride burning or dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
4. When the crime is enormous in proportion, for instance when multiple murders, say of all or almost all the members of her family or a large number of persons of a particular caste, community, or locality are committed.
5. When the victim of a murder is an innocent child or a helpless woman or an old or infirm person, or a person vis-a-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to question posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.
13. A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilised society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at his trial in a system wedded to the rule of law is the outcome of cool deliberation in the courtroom after adequate hearing is afforded to the parties, the prosecuted is given an opportunity of meeting the accusation by establishing his innocence. It is the outcome of cool deliberation and the screening of material by the informed man i.e., the judge that leads to determination of the lis.
14. It is to be noted that in the case of Machhi Singh v. State of Punjab (Supra) the Hon'ble Supreme Court laid down further tests/guidelines for the application of the 'Rarest of Rare' rule to specific cases, which are being followed by all the Courts. The tests/guidelines are as follows:
a) Is there something uncommon about the crime, which renders sentence of imprisonment for life inadequate and calls for the death sentence?
b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender.
15. It is, therefore clear that imposition of death punishment for murder is only in rarest of rare cases. Even in such cases, the Court will resort to impose death punishment only after examining the mitigating and aggravating circumstances in which the offence was committed, whether it is impossible to reform and rehabilitate offender etc. Therefore imposition of death punishment though regarded as punitive, is in effect a duty cast on the Court as to decide whether under the facts and circumstances of the case compared with mitigating circumstances and keeping in view the possibility of the accused reforming from his previous conduct, deserves the extreme penalty of death or not.
16. In the case of Dhananjoy Chatterjee v. State of West Bengal, : [1994]1SCR37 the Supreme Court observed thus
'In recent years, the rising crime rate-particularly violent crime against woman has made the criminal sentencing by the Courts a subject of concern. Today there are admitted disparities. Some criminals get a very harsh sentences while many received grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of the crime as also the society has the satisfaction that justice has been done to it.
(emphasis supplied by us)
In our opinion the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenseless and unprotected state of the victim, imposition of appropriate punishment is the manner in which the Courts respond to the society's cry for justice against the criminals. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering the imposition of appropriate punishment,
(emphasis supplied by us)
17. In the light of these principles enunciated, we have carefully examined the case on hand. In the present case, no doubt the accused are young, come from rural background and may be even from poor section of society (though no material in this regard is placed before us). But the deceased was also a young virgin rural girl of hardly 18 years and she has been not only raped in a beastly manner but was also murdered by the accused in abroad day light. Fortunately, even before the accused could abscond, the villagers caught them within a short time and handed over to the police.
18. This is also not a case wherein the accused are first offenders and hence require sympathetic consideration. It is to be noted that in fact the elders of the village dealt with these two appellants on two earlier occasions when these very two offenders were caught for having attempted to molest/outrage modestly of the daughter of P.W.7 and also another daughter of P.W. 10, who was none else than the sister of the deceased. On those occasions, instead of taking action to lodge a criminal case against these accused, considering their young age and the plea of their family members, panchayat of village elders let them off with mere warning. In our view, these warnings and admonition by the village elders had practically no effect on these accused. In fact P.W. 7 has stated that out of fear created by the accused, thereafter he left the village itself and came back only after the accused were apprehended in the present case. Despite two opportunities given to them to reform, the appellants not only did not mend their ways but were emboldened to resort to more grievous act of committing rape on the victim - deceased, a young virgin girl of 18 years in a broad day light and as if this was not sufficient, they brutally murdered her. The circumstances in which the crime was committed, the lustful, rather beastly acts of the accused wholly unmindful of disastrous consequences indicate that they are incorrigible and as such have become a menace to society. Their acts are not only revolting but must have aroused the extreme indignation of the community. This also is clear from the evidence that after hearing about the heinous offence and on learning that it is these accused who have done the crime, the entire village went in search of them, caught them and handed them over to the police within short span of time of the offence. In our view, the conduct of the appellants leaves no doubt in our mind that the society will not be safe when such persons are around.
19. As already noted, the society on earlier two occasions gave chance to accused to reform, but it was in vain and resulted in the present brutal rape and murder of Shivamma, a young village girl whose beautiful young life was nipped in the bud by these two devils in the garb of human form.
20. In our view, neither their young age, their social background, nor the plea of loss to the family can be considered as a mitigating circumstance to outweigh the aggravating factors noted above. In our view, the appellants do not possess basic humaneness and they lack the psyche or mindest which can be amenable for any reformation. It is to be noted that even when we questioned these accused regarding sentence, except proclaiming their innocence, they did not show any remorse to their brutal conduct.
21. After giving our considerable and anxious thoughts to these aspects, we find with utmost caution that this is the 'rarest of rare' case in which death punishment is the only minimum punishment for the accused. Hence, we reject the appeal filed by the accused challenging their conviction and confirm the conviction for both the offences and also the sentence for the offence punishable under Section 376 read with 34 of the IPC. Unhesitatingly, we accept the reference made by the learned Sessions Judge and confirm the death punishment imposed by him on the appellants.
A copy of this judgment shall be forwarded to the Sessions Judge for further action in this regard.