1. The sole accused Prakash Jadav faced a trial before the Trial Court for the offences punishable under Sections 302, 392 and 201 of IPC for having committed the murder of a child by name Akhila, with the intention of robbing the ornaments, such as, gold ear rings and silver leg chains, which were worn by the said child and committed robbery by snatching the gold ear rings and silver leg chains, which were worn by the child and that further, after committing the robbery and murder kept the dead body of the child Akhila in a plastic bag, carried it in a suit case, thereafter, by selling away the gold ear rings and silver leg chains at Davanagere, having purchased a gunny bag, put the plastic bag containing the dead body of the child into the gunny bag and with an intention of causing disappearance of the evidence, kept the said gunny bag containing the dead body of the child in a railway compartment at Davanagere Railway Station in the Inter-city Train and has tried to cause the disappearance of the evidence of murder and robbery, so as to screen himself from legal punishment and thereby, committed the above said offences. At the conclusion of the trial, the Trial Court on consideration of the entire material placed on record and after hearing the submissions on both sides, has convicted the accused on all the three counts for the offences punishable under Sections 302, 392 and 201 of IPC. For the offence under Section 302 of IPC, the Trial Court has sentenced the accused with the extreme penalty of death sentence. The Trial Court has also imposed separate sentences against the accused for the other offences. Since the Trial Court has passed a sentence of death against the accused, the proceedings have been submitted to this Court under Section 366 of Cr.P.C. for the confirmation of a sentence of death passed against the accused. Besides the reference made by the Trial Court under Section 366 of Cr.P.C., the convicted accused has also preferred an appeal challenging the conviction and sentence passed against him by the Trial Court
2. The reference made by the Trial Court under Section 366 of Cr.P.C. and the appeal filed by the convicted accused under Section 374 of Cr.P.C. are both taken up together for consideration. They have been heard together and are disposed of by this common judgment.
3. The case of the prosecution in brief is:
The accused was a mason by profession. He was residing in a house situated in Vijayanagar Extension in Harihara Town alongwith his wife and a male child. The wife of the accused used to work as roti maker in the house of the other persons from morning till evening and she used to take her male child alongwith her to the place of work. The deceased is one Akhila, who was a female child aged about 2 or 3 years at the time of her death. The parents of the deceased are PW.2 - Nagaraj and PW.3 Smt. Savithramma. During the relevant time of this incident, they were both employed at Davanagere. PW.9 Smt. Sharadamma is the grand mother of the deceased child. Since both the parents of the deceased child were employed at Davanagere and there was no other person to look after the deceased child at their house, they had left the said child in the house of its grandmother Smt. Sharadamma - PW.9 situated in the same locality as that of the accused in Hariharan Town. Infact, the house of the accused was just adjoining to the house of Smt. Sharadamma PW.9 and the same was separated only by a lane. PW.9 Smt. Sharadamma, the grandmother of the deceased child , with whom the child was living during the relevant time of this incident, was a neighbour of the accused. They had a close acquaintance with each other. The deceased child was quite often going to the house of the accused. Even the accused had lot of affection and love towards the deceased child, as he had no female issues. While this was so, it is stated that on 27.9.2004, at about 9.30 or 10.00 a.m. in the morning, the deceased child after having food in the house, while her grandmother PW.9 was inside the house, had visited the house of the accused. At that time, it is stated that the accused was all alone in the house. However, there is nothing on record to show whether the deceased child had gone on its own to the house of the accused or the said child had been taken away by the accused to his house. The deceased child Akhila used to wear a pair of gold ear rings MO. 1 and a pair of silver leg chains MO. 2 on her person. These two ornaments were usually found worn by the deceased child. Apart from this, on that relevant day, the deceased child was wearing the clothes tike the frock MO.3, the underwear MO.4 and also had on her person a beaded neck chain MO. 5 and a black thread MO. 10. After about some time, when Smt. Sharadamma PW.9 came out of the house, she did not find the child and on the other hand, she had heard cries like that of or resembling to that of her grand daughter Akhila from the house of the accused. Thereupon, Smt. Sharadamma PW.9 went to the house of the accused and enquired him, whether her grand daughter is to be found in his house. On being so enquired by PW. 9, it is stated that the accused got little bit scared and appeared to be perturbed. But, he however told Smt. Shardamma PW.9 that her grand daughter did not come to his house. Thereafter, the said Smt. Sharadamma PW.9 alongwith others made a search for the deceased child in and around her house, but could not secure the child. Ultimately, she informed this fact to the other members of the family, who alongwith a few others made efforts to search for the child, but it was proved to be in vain. In the mean time, the accused was found leaving the house at about 4.00 p.m. in the evening, stating that he would be going to Shimoga on some urgent work. He was found carrying a suit case with him. The accused was found proceeding in an autorickshaw carrying a suitcase with him. Though the accused had made a representation that he would be going to Shimoga on some urgent work, he got down from the autorickshaw at a point, from where he could catch another vehicle to proceed to Davanagere. The accused had infact went to Davanagere by travelling in another vehicle carrying the suit case along with him. On the same day evening, the parents of the deceased child were also informed of the missing of the child from the house of PW.9 and they had come to the house of PW.9. On their arrival from Davanagere, PW.9 Smt. Sharadamma narrated the entire incident in detail leading to the missing of the child to the parents of the deceased child. While the search was being continued to trace the missing child, on 27.9.2004 at about 10.00 p.m. in the night, i.e., on the same night, PW. 1 Bharmappa, a railway employee found a gunny bag lying on the seat in the 4th compartment of the Inter-city Train from the engine at the Hubli Platform, when he was in the process of locking the compartments, PW.1 Bharmappa informed this fact to his superiors, who in their turn informed the same to the Railway Police, Infact, it is PW.1, who had actually informed the said fact to the Railway Police on being directed by his superiors. On examining the gunny bag, they felt something fishy about the Contents in the gunny bag, which was found abandoned in the compartment and hence, they informed the said fact to the officer-in-charge of the Police Station attached to the Railway Station. Thereafter, it was found that the said gunny bag contained the dead body of the deceased child. PW.20 V.V. Hiregoudar, was then the PSI of the Railway Police Station at Hubli. On 27.9.2004, at about 11.10. p.m. in the night, when the PSI PW.20 was present in the Police Station, he had received a Memo from the Station Master stating that a gunny beg containing the dead body of a child is found lying in one of the compartments of the Inter-city Train at the Hubli Railway Platform. He received that Memo and proceeded near the said compartment, where the gunny bag containing the dead body of the deceased child was lying. Thereafter, a complaint was lodged by Bharamappa PW.1 at about 12.00 midnight in this regard and on the basis of which, the PSI PW.20 registered the case in Crime No. 80/2004 at the Hubli Railway Police Station. Thereafter, he held the inquest proceedings on the dead body of the deceased child in the presence of the panchas as per the inquest report Exhibit P.3. After the inquest proceedings were held on the dead body of the deceased child, the PSI PW.20 forwarded the dead body of the deceased child for its post mortem examination to the KMC Hospital at Hubli. Till then, the dead body of the deceased child could not be identified and hence, after the post mortem examination was conducted on the dead body, the PSI PW.20 got the dead body of the deceased child buried. Thereafter, the PSI PW.20 made over the investigation of this case to his superior officer. While this was so, at about 3.00 p.m. on 28.4.2004, the parents of the deceased child having come to know of the dead body of a child being recovered from a gunny bag found lying in the railway compartment, went to Hubli and there, they identified the photograph of the dead body of the deceased child that was shown to them by the Police and also the clothes that were found on the dead body to be that of their child Akhila. The ornaments that were usually worn by the deceased child on its person were not to be found, when the dead body of the deceased child was traced in the gunny bag found abandoned in the compartment. That is to say, the ornaments that were usually worn by the deceased child were found to be missing from the dead body. Thereafter, further investigation of this case was transferred to the Harihara Police on the point of jurisdiction. PW.25 A.S. Gori, who was then the CPI of Harihara Circle is the Investigating Officer. After the CPI PW.25 took up the further investigation of this case, he visited the house, where the deceased was living and after making necessary enquiries, he went to the house of the accused and arrested him from his house. After the arrest, the Investigating Officer PW.25 took the accused to Davanagere for the purpose of interrogation. When the accused was being subjected to interrogation by the Investigating Officer PW.25, he volunteered with an information to point out the places and the ornaments, which statement of the accused was recorded by the Investigating Officer PW.25 to writing as per Exhibit P.24. Pursuant to such information, the accused led the Investigating Officer PW.25 and the panchas PW.6 and another in the first instance to his house, Where he got recovered the suit case MO. 12 and the rope MO. 13. They were seized under a panchanama Exhibit PW.5. Thereafter, the accused led them to a jewellery shop of PW. 10 situated on the Vijayalakshmi Road in Davanagere, where the accused got recovered the ornaments MOs 1 and 2. They were both seized under a panchanama Exhibit P.9. From there, the accused led them to a shop of PW. 11 Shantappa, from where he had purchased the gunny bag M.O.6 on the very day i.e., 27.9.2004. Thereafter, the accused had also led them to a liquor shop, where he had consumed the liquor. The accused had also pointed out to them the place, where he got the dead body of the deceased child removed from the suit case and put into the gunny bag. He further pointed out the place, where he had actually put the gunny bag containing the dead body of the deceased into the compartment of the Inter-city Train at the Railway Platform of Davanagere. The Train was proceeding towards Hubli. After the Investigating Officer PW.25 had done his part of the investigation and also since he was transferred to some other place, he made over the further investigation of this case to his successor PW.21. The said successor - Investigating Officer PW.21, after the completion of the investigation, submitted the charge sheet to the Court against the accused.
4. PW.18 - Dr. K.S. Itagi is the Medical Officer, who conducted the post mortem examination on the dead body of the deceased child on 28.9.2004 between 11.30 a.m. and 12.30 p.m. When the dead body of the deceased child was brought to the Medical Officer PW.18 for the post mortem examination, it was found lying in a gunny bag. The hands were tied with a jute cord and were placed beneath the chin and the same jute cord had continued on neck. Even the legs of the deceased child were found tied tightly with a jute cord, folded backwards with heels touching the buttocks. The jute cord tied to ankles was passing over the outer surface of the legs and thighs and then it was passing on front of middle of both the thighs. Fixed knot was present on the front of the legs. On release of hands and feet, the dead body was found to be that of light brown complexion and moderately built female, Post Mortem staining were present on the front of the body. The Doctor PW. 18 noted the identification features that were found on the dead body of the deceased. He further found that the bloody fluid was found oozing from the nostrils. The face and eyes were found to be deeply congested. There was a ligature material of jute cord present deeply tied to neck of two rounds with fixed knot on the right side of the neck and was taken forward for a length of 13 cms. to tie both the hands. On removal of jute cord from the neck, there was a ligature mark all round the neck more prominent on back and right side of the neck making pressure abrasion on them; of total length 18 cms., placed 4 cms. below left mastoid process with 1/2 cm. breadth, 5 cms. below right mastoid process with O.4 cm. breadth, 4 cms. below chin with 0.4 cm. breadth, 6 cms. Below occipital protuberance with 1/2 cm. breadth. There was a vertical abrasion of 5 cms. x 1/2 cm. on back of neck, starts from the above abrasion at level of occipital protuberance and runs downwards. The jute cord from neck is carried to tie the hands. The left wrist is completely encircled with a groove of 9 cms. length and breadth 1/2 cm. The cord passes only on the outer surface of right wrist making a faint mark on skin. The ligature material has made grooves on outer surface of both legs, placed 2.5 cms. above lateral malleoli with 7 cms. length and 1/2 cm. breadth on left side, 5 cms. length and 1/2 cm. breadth on right side. There was extravacation of blood into the skin beneath the ligature mark on neck. The abrasion on neck was red in colour. There was no extra vacation of blood beneath the ligature mark on hands and legs. The ligature mark on neck is fresh and antemortem in nature. The ligature mark on hands and legs were postmortem in nature. Apart from the above said external features, the Doctor PW.18 found the following clothes and articles on the dead body of the deceased.
1. One white frock with light pink and parrot green flowers design.
2. One black waist thread.
3. Two wrist bands with black beads one on each wrist.
4. One necklace with saffron colour beads and metallic talisman and a black thread on neck.
5. One pink underwear.
6. One gunny bag with G-9 Brand Chogalal Suvalal, 57, Kailash Marg, Indore, printed on it.
7. A hand bag made out of ACC Cement Bag.
8. One jute cord with two fixed knots present on neck and hands of length 55 + 25 cms.
9. One jute cord tied to legs with two fixed knots of length 82 cms. with a 30 cms. loop.
5. The clothes and articles that were found on the dead body of the deceased were packed, labelled, sealed and handed over to the concerned Police. The time since death has been opined by the doctor PW. 18 could be about 18 to 36 hours, before conducting of the post mortem examination. On dissection of the dead body of the deceased, he found certain internal features, which he had noted in detail in the post mortem report. The Doctor PW. 18 has opined as to the cause of death of the deceased child could be due to respiratory failure, consequent upon ligature strangulation. That is to say, the death of the deceased child, according to the Doctor PW. 18 could be due to respiratory failure, consequent upon ligature strangulation. He has issued the PM report as per Ex.P19. Subsequently on 22.12.2004, the doctor PW.18 had examined the suitcase MO. 12 and opined that it is possible to stuff the dead body of the deceased into the suitcase MO. 12 and to carry the same from Harihar to Davangere. The opinion furnished in this regard by the doctor PW. 18 is at Ex.P23.
6. The prosecution in order to substantiate its case had examined at the trial PWs. 1 to 25 and placed on record Ex.Pl to P27 and Mos. 1 to 13.
7. Out of the 25 witnesses examined by the prosecution, PWs. 2 and 3 are the parents of the deceased child and PW.9 is the grandmother with whom the deceased child had been staying at the relevant time of the incident PW. 1 Bharamappa was working as a lockman in the Railways at the Hubli Railway Station and that on 27.9.2004 at about 10 p.m. in the night while he was locking the coaches of the inter-city train at the Hubli Railway Station, he found an abandoned gunny bag lying on a seat in the 4th compartment from the engine and had reported the matter to his superiors and the Police and that when the Police came and examined the contents of the said gunny bag, the dead body of the deceased child aged about 2 to 3 years was found in it. There has been no cross-examination to this witness by the defence. PW.2 Nagaraj and PW.3 Savithramma are the parents of the deceased child. They were both employed at Davangere and since there was no one to look after the child at their house, they had left the deceased child in the house of PW.9 at Harihar. They have both fully supported the prosecution case. PW.4 Rajan was having a tea stall at the Railway platform in Hubli and he had acted as a panch witness for the panchanama Ex.P2 and he was also a panch for the inquest proceedings held on the dead body of the deceased as per the inquest report Ex.P3. PW.5 Manjunath is an auto driver at Harihar. He had acted as a panch witness for the panchanama Ex. P4 recorded at the Police Station. PW.6 Gajananda Dalabhanjan is a resident of Vijayanagar extension in Harihar town. He knew both the accused and PW.9. He had acted as a recovery panch for the recoveries effected at the instance of the accused and also to the places pointed out by the accused to the Police and in respect of which the panchanamas were recorded as per Ex.P5, P9, P10 and PH. PW.7 Maltesh is an auto driver who had carried the accused in his autorickshaw on 27.9.2004 at about 4 p.m. in the evening from the Vijaynagar II Main Road to the telephone exchange of Harihar town so as to enable him to board the bus to proceed to Davangere. At that time, the accused was found in possession of the suitcase Mo. 12 with him. PW.7 is a resident of Harihar town and he knew the accused. PW.8 Maltesh, who is a resident of Vijaynagar extension in Harihar knew the accused and PW.9. He was a member of the search party who made efforts to trace the deceased child. He saw the accused boarding the autorickshaw of PW.7 alongwith the suitcase Mo. 12 and when enquired by him, he was told by the accused that he is proceeding to Shimoga. PW.9 Smt. Sharadamma is the grand-mother of the deceased child in whose house at Harihar town the deceased child was staying at the relevant time of this incident. The accused was her neighbour. PW.9 has fully supported the prosecution case. PW. 10 A.G. Suresh was the owner of a jewelry shop situated on Vijayanagar Road in Davangere. The accused had sold Mos. 1 and 2 to him on 27.9.2004 at about 5.30 p.m. in the evening, which were subsequently seized on 1.10.2004 at about 10.30 or 11.00 a.m. in the morning by the Police when they had come to his shop alongwith the accused under a panchanama Ex.P9. PW. 11 is the owner of a grocery shop at Davangere. The accused had purchased the gunny bag MO.6 from him on a certain day at about 6 p.m. in the evening. The accused had subsequently came to his shop alongwith the Police and had pointed out his shop as the one from where he had purchased the gunny bag Mo.6. PW. 12 Hanumanthappa was working as a technician in the Railways at Hubli Railway Station. He corroborates the version of PW. 1 of having found the gunny bag containing the dead body of the deceased child in the compartment. PW.13 Manjula was working as a Head Constable in Harihar Police Station and that on 27.9.2004 at about 7 p.m. in the night when she was in-charge of the Police Station, PW.9 had visited the Police Station alongwith a few others and informed to her that her grand child has been found missing from 10 a.m. and requested her to inform them in case if they were to receive any information regarding the missing child. PW. 14 Damudu was working as a Railway Police and that on 27.9.2004 at about 10.45 p.m. while he was on duty at the platform of Hubli Railway Station, he was informed by PW. 1 about the abandoned bag containing the dead body of the deceased child lying in the compartment He has fully supported the evidence of PW.l. PW.15 Nagaraj is a photographer having his studio at Harihar town. He was engaged by the Police to take the photographs on 1.10.2004 at about 8 a.m. and accordingly, he took the photographs as per Ex.P6, P7, P8, P11, P12, P13, P15, P16, P17 and P18 are the negatives of these photographs. PW. 16 was working as RPC in the Railway Police Station and he was directed by the CPI on 27.9.2004 at about 11 p.m. in the night to take the photographs of the dead body of the deceased child found in the gunny bag and accordingly, he had taken the photographs of the deceased child which is as per Ex.P1. PW.17 was working as R.H.C. in the Railway Police Station and that on 27.9.2004 at about 11 p.m. in the night, on being informed by the Station Master, he went and saw the dead body of the deceased child lying in a gunny bag in the compartment at the Hubli Police Station. He informed this fact to his superior, who in turn came there and recorded a panchanama and also held the inquest proceedings on the dead body of the deceased. Thereafter he got the dead body of the deceased child buried after the same was subjected to PM examination. On 4.11.2004 he had carried the clothes and articles that were found on the dead body of the deceased child to Harihar Police Station. PW.18 Dr. K.S. Itagi is a Medical Officer who conducted the PM examination on the dead body of the deceased child and had issued the PM report as per Ex.P19. Subsequently on 22.12.2004, he had examined the suitcase and gave his opinion as per Ex.P23. PW.19 Ramesh Kumar was then working as PSI of the Harihar Town Police Station and that on 1.10.2004 at about 6 a.m. he had received the case papers from the Hubli Railway Police Station for the purpose of investigation on the point of jurisdiction. He received the same and registered the case at the Harihar Town Police Station. PW.20 Hiregoudar was working as ASI and that on 27.9.2004 while he was in-charge of the Police Station, he received information at about 11.10 a.m. from the Railway authorities regarding the dead body of the deceased child being found in a gunny bag. He had obtained the complaint of PW. 1 and registered the case, conducted the mahazar and held the inquest proceedings. PW.21 Murugannanavar is the Investigating Officer who took up the further investigation of this case from PW.25 and after completion of the investigation had submitted the charge sheet to the Court. PW.22 Smt Lakshmamma is the sister of the accused and who has turned hostile to the prosecution case. She is the only witness who turned hostile to the prosecution. PW.23. Thippeswamy is the P.C. from Harihar town Police Station and he had carried the FIR to the Court on 1.10.2004. PW.24 Manjunath was working as a supplier in R.R. Bar and Restaurant at Davangere and that on 27.9.2006 at about 6 p.m. in the evening he had served the liquor to the accused. He found that the accused was in a possession of a suitcase and a gunny bag. Subsequently the Police had brought the accused to the said bar and restaurant pointing out the same to be one where he had consumed the liquor. PW.25 is the 1st Investigating Officer who took up investigation of this case on 1.10.2004 and was in-charge of this case till his transfer. He has done a major portion of the investigation of this case. This in short is the summary of the evidence adduced at the trial by the prosecution.
8. The accused when examined under Section 313 Cr.PC, has chosen to deny all the incriminating circumstances appealing against him in the prosecution evidence. He would however say that there was enmity between him and PW.6 due to which he has been falsely implicated in the case. He has denied having made any statement to the Investigating Officer leading to the recovery of Mos. 1 and 2. He has stated that on 29.9.2004 at about 6 p.m. in the evening he was apprehended by the Police and was taken to several places where he was photographed. The accused did not however either examine himself or examined any witness on his behalf.
9. The trial Court on consideration of the entire evidence placed on record by the prosecution and after hearing the submissions on both sides, has by its impugned Judgment convicted and sentenced the accused as stated supra.
10. We have heard the arguments of the learned Counsel for the appellant as well as the learned State counsel at a considerable length and carefully perused the entire material evidence placed on record with their assistance.
11. Learned Counsel for the appellant/accused has contended as under:
The circumstances relied upon by the prosecution are not at all sufficient to establish the evidence against the accused under Sections 302, 392 and 201 of IPC moreso when the panch for the recovery viz., PW.6 had an axe to grind against the accused and at whose instance the accused was falsely implicated in the case. At no point of time, the involvement of the accused was suspected and the name of the accused does not find mention either in the complaint given to the Police or in the statement made to the Investigating Officer as being the person involved in the commission of the offence. There being no such mention in any of the records of the investigating agency, it is quite strange to find that the Investigating Officer PW.25 had gone straight to the house of the accused and caused his arrest and effected the recovery, which on the face of it appears to be inherently improbable. The evidence of PW.9 that she had heard the cries like that of the deceased child from the house of the accused on that relevant morning, besides being an improvement made at the trial appears to be highly unnatural and improbable inasmuch as if that were to be so, a complaint could have been lodged against the accused mentioning this fact. But admittedly no such complaint was lodged. Further the accused was not living alone in the house and on the other hand he was found living in the house alongwith his wife and child and hence the possibility of the deceased child being done to death in the house of the accused appears to be highly incredible. The testimony given in Court by PW.9 and PWs.2 and 3 is not capable of being believed on the material aspect of the case and moreover they had at no point of time pointed out the finger of suspicion against the accused. The very fact that the accused had also joined them in searching for the deceased child would show the conduct of the accused to be innocent rather than being a guilty person. The accused in all probability has been falsely implicated in the case at the instance of PW.6 who had a grudge against the accused in view of the fact that the accused had given information to the Police regarding the selling of liquor without licence against PW.6 about 2 or 3 years prior to the incident. It is only after PW.6 had entered the scene, the Investigating Officer PW.25 had arrested the accused from his house and alleged to have effected the recovery which circumstance besides being farce, is highly incredible. Under the circumstances, therefore, none of the circumstances alleged against the accused have been conclusively established and even if such circumstances are to be put against the accused, they are not sufficient to establish the charges framed against the accused. Further having regard to the circumstances available on record, this is not a rarest of rare case so as to award a death sentence to the accused for the offence under Section 302 of IPC.
12. In support of his submissions, the learned Counsel for the appellant/accused has placed reliance upon the following decisions:
1. 2005 SCC (criminal) 653 Surendra Pal Shivbalakpal v. State of Gujarat
2. 2005 SCC (criminal) 1516 Rahul Alias Raosaheb v. State of Maharashtra
13. While placing reliance upon these decisions, he contended that this is not a rarest of rare case where the trial Court could have awarded the extreme penalty of death sentence to the accused moreso when the accused was hardly aged about 31 years having a wife and a male child with no criminal antecedents. He contended that even if the offences alleged against the accused are held to be established, he cannot be considered to be a menace to the society in future. He therefore contended that considering the age of the accused and other circumstances, the penalty of death imposed upon the accused by the trial Court may be set aside and the reference may be rejected.
14. As against this, the learned State counsel while supporting the impugned Judgment and Order of conviction and sentence passed by the trial Court has contended as under
This is a clear cut case where the eye-witness account of the witnesses would show that the accused was found carrying the suitcase MO. 12 wherein the dead body of the deceased child was stuffed. The said fact has been clearly spoken to by PWs.7 and 8 who had absolutely no motive to falsely implicate the accused. Apart from this, in many aspects of the case, the evidence of the prosecution witnesses has remained unchallenged. The death of the deceased child by strangulation and the dead body of the deceased child being recovered from a gunny bag which was found abandoned in the compartment is not in serious dispute. The said dead body of the deceased child which could have been easily stuffed in to the suitcase was found to be in possession of the accused when he was found leaving the house on the very same day evening at about 4 p.m. and while representing that he would be proceeding to Shimoga, he had actually proceeded to Davangere where he had sold the ornaments of the deceased child. The evidence of PW.7 regarding the possession of the suitcase MO. 12 with the accused has not at all been challenged in the cross-examination by the defence. The said circumstances coupled with the recovery of the ornaments of the deceased child MO. 12 clearly points out the guilt of the accused moreso when the accused has not offered any explanation with regard to the possession of the ornaments of the deceased child with him soon after the deceased child was found missing from the house. In the instant case, there is no missing link so as to give benefit of that missing link to the accused. The trial Court was therefore right in convicting the accused for the offences punishable under Sections 302, 392 and 201 of IPC. Having regard to the circumstances under which the accused had caused the death of the deceased and robbed the ornaments of the deceased MOs. 1 and 2 from the person of the innocent child, the accused does not deserve any leniency in the sentence and anything less than the death sentence will be a lenient sentence. Here is a case where an innocent child aged about 2 or 3 years had gone to the house of the accused with a fatherly affection and such a child had been killed brutally only to take away the ornaments found on the deceased child MOs. l and 2. Thereafter the dead body of the deceased child was stuffed into the suitcase and subsequently the same was put into the gunny bag and the same was abandoned in the compartment in order to conceal the evidence of murder. It is therefore a rarest of rare case wherein the trial Court has rightly sentenced the accused with the extreme penalty of death sentence for the offence under Section 302 of IPC which warrants no interference by this Court. Hence the reference be confirmed and the appeal filed by the appellant be dismissed.
15. Having heard the submissions on both sides at a considerable length and having carefully perused the entire materials placed on record by the prosecution, the question for consideration is whether the prosecution has been able to establish the guilt against the accused and if so, whether the extreme penalty of death passed by the trial Court against the accused for the offence under Section 302 of IPC needs to be confirmed ?
16. The prosecution case rests entirety on circumstantial evidence; No one has either witnessed the accused committing the crime or keeping the gunny bag containing the dead body of the deceased child into the compartment of the Inter City train at Davangere. Therefore, we have to see whether the circumstances alleged by the prosecution are satisfactorily established and further whether the circumstances proved are not merely consistent with the guilt of the accused but inconsistent with his innocence. The plea of the accused is one of a total denial of the circumstances appearing against him in the prosecution case. He has not only denied the commission of the offences with which he was charged, but he has also denied the several circumstances put against him excepting the fact that he was apprehended by the police on the evening of 29.9.2004 at about 6 p.m. and was subsequently taken to several places where his photographs were taken. The further plea of the accused is that he has been falsely implicated in the case at the instance of P.W.6 and one Chandrappa on account of their personal vengeance against him.
17. It has to be stated at the outset that the decisions dealing with the true requirements of circumstantial evidence are legion. Each criminal case depends on its own facts and close similarity between one case and another is not enough to warrant the like treatment because a significant detail may alter the entire aspect In deciding such cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Each case, more particularly a criminal case depends on its own facts. The imprint fact situation of one decided case upon another or observations made in the peculiar facts of a given case to any or every other case notwithstanding dissimilarity in effect and the distinctive features is legally impermissible. Each decision, deedingupon the facts of that case is likely to lay emphasis on one or the other of the several principles that bear on the appreciation of circumstantial evidence. Decisions dealing with the true requirements of circumstantial evidence are legion. Superficially viewed, what inferences should be drawn from a given set of facts is essentially a question of fact depending on each case.
18. The true rule is that the circumstances allegedmust be established by satisfactory evidence as in the case of the other evidence and the circumstances proved must be conclusive in character. In other words, the chain of circumstances established must be so complete as to leave no reasonable doubt about the guilt of the accused. While it is true that there should be no missing links in the prosecution case, it is not the law that every one of the links must appear on the surface of the evidence adduced. Some of these links may have to be inferred from the proved facts. Those links may be termed as inferential links. In drawing those inferences or to be more accurate, presumptions, a judge of fact is required to have due regard to the common course of natural events, to human conduct and their relation to the facts of the particular case. If that is not so, Section 114 of the Evidence Act would become otiose, which in its own would make the laws ineffective. A reference may also be made to the legal principle enunciated or adumbrated in Section 106 of the Evidence Act, which prescribes that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. True, the principle embodied in Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving the facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is now well settled that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the special knowledge of the accused. In the case of Shambhu Nath Mehra v. The State of Ajmer reported in 1956 S.C. 404, the Hon'ble Supreme Court has stated the legal principle thus:
This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ''especially' stresses that. It means facts that are preeminently or exceptionally within his knowledge'.
19. Bearing in mind the above principles, we shall now have another look at the facts established.
20. On the basis of the postmortem report exhibit P. 19 issued by the doctor PW. 18 who conducted the postmortem examination on the dead body of the deceased child and the evidence given by the doctor PW. 18 in court to substantiate the contents of the postmortem report, the conclusion is irresistible that the death of the deceased child was homicidal. That is to say, the medical evidence placed on record by the prosecution would clearly indicate that the death of the deceased child was due to respiratory failure consequent upon the ligature strangulation. The hands of the deceased child were found tied with a jute cord, which had continued on the neck as ligature material. Even the legs of the deceased child were found to be tied tightly with a jute cord. The legs were found to have been folded backwards with heels touching buttocks. The jute cord from the neck was carried to tie the hands. The ligature mark found on the neck of the dead body of the deceased child was ante-mortem in nature while the ligature marks or the cord marks found on the legs and hands of the dead body of the deceased child were postmortem in nature. It is thus clear from the medical evidence on record that after the child was done to death by strangulation, the same ligature material or some other material like jute cord had been used to tie the hands and legs of the deceased child. The doctor PW.18 has clearly opined that the death of the deceased child was caused due to strangulation of neck by means of a jute cord. Nothing substantial has been brought out in the cross-examination of the doctor P.W.18 as to disbelieve his evidence in this regard. The evidence given by the doctor PW.18 in court stands corroborated from the contents of the postmortem report Exhibit P. 19.
21. The evidence of PWs.l, 4, 12, 14, 16, 17 and 21 as also the contemporaneous records such as the Panchanama and the Inquest Report and also the photograph exhibit P.1 of the deceased child would substantially corroborate the version given in court by the doctor PW. 18 and the postmortem report exhibit P. 19 issued by him.
22. Therefore, from the material evidence placed on record by the prosecution, it is quite clear that the deceased child Akhila had met with a homicidal death.
23. The evidence of the parents of the deceased PWs.2 and 3 as well as the grandmother of the deceased child P.W.9 would show that the clothes MOs.3 and 4, the black waist thread, the wrist bands with black beads- one on each wrist, one necklace with saffron colour needs and metallic talisman and a black thread on the neck that were found on the dead body of the deceased which was found in the gunny bag that was abandoned in the compartment of the Inter City train were that of the deceased child Akhila. They have been clearly identified by them to be that of the deceased child Akhila. They being the parents and grandmother of the deceased child had absolutely no difficulty in identifying the said articles of the deceased child. In fact, they are the most competent witnesses to identify the said articles. The evidence of the doctor PW.18 would clearly indicate that all these articles that were found on the dead body of the deceased were properly packed, sealed and handed over to the concerned police. In addition to this, the photograph of the dead body of the deceased as per Exhibit P. 1 had also been identified by them to be that of their child Akhila. Thus the identity of the deceased child to be that of Akhila stands established from the above evidence on record. Besides this, as we have already indicated, the photograph of the dead body of the deceased child Exhibit P. 1 which was taken soon after the dead body was traced, had also been identified by them to be that of their deceased child Akhila.
24. Therefore, it can safely be concluded from the evidence placed on record by the prosecution that the deceased child Akhila who was found missing from the house of its grandmother PW. 19 on the morning of 27.9.2004, had met with a homicidal death and her dead body that was found in a gunny bag had been traced subsequently in one of the compartment of the Inter City train at Hubli Railway platform.
25. The evidence of the PWs. 2, 3 and 9 (the parents and grandmother of the deceased child) would further indicate that the gold and silver ornaments MO.1 (gold earrings) and MO.2 (Silver leg chains) belonged to the deceased child Akhila. Their evidence would clearly indicate that these ornaments, viz., MOs. 1 and 2 were usually worn by the deceased child on her person and that further the deceased child Akhila was found wearing them when it had disappeared from the house of P.W.9 on that relevant day in the morning. It may be stated here itself that normally the ladies have an uncanny sense of identifying their articles though they may be common place articles. There is nothing on record to doubt their evidence regarding the identification of these articles MOs.l and 2 as that of the deceased child Akhila. Therefore, it could safely be concluded that the MOs. 1 and 2 belong to the deceased child Akhila which she always used to wear them on her person. These two ornaments viz., MO.l and MO.2 were not to be found on the dead body of the deceased child when it was found abandoned in a gunny bag in one of the compartments of the Inter City train at Hubli platform. Therefore, the one and the only inference that can be drawn from these proved facts is that they must have been removed from the person of the deceased child Akhila either before her death or after causing the death of the deceased child and abandoning the dead body by putting it into the gunny bag in one of the compartment of the Inter City train. In the fact situation, whoever has removed the said ornaments MOs. 1 and 2 from the person of the deceased child Akhila, must have had the knowledge of the circumstances which lead to the death of the deceased child Akhila.
26. In the instant case, it is not in dispute that the accused was an immediate neighbour of PW.9 and the deceased child Akhila was quite often found going to the house of the accused. It has been suggested by the defence in the cross-examination that the accused had lot of affection and love towards the deceased child as he had no female issues. It is thus clear from the above evidence placed on record by the prosecution that the deceased child Akhila was frequently visiting the house of the accused and that further the accused had love and affection towards the deceased child Akhila. There is nothing on record to show that the deceased child Akhila was in the habit of visiting any other house other than the house of the accused. In other words, the material placed on record would show that the deceased child Akhila was visiting the house of the accused alone in the neighbourhood of the house of P.W.9, the grandmother of the deceased child. The evidence of the Investigating Officer PW.25 would show that after he took up the investigation of this case on 1.10.2004 at about 6.30 A.M. from the P.S.I., he had visited the house of the deceased child at Harihar and after making the necessary enquiries he had arrested the accused from his house and took the accused to Davangere for the purpose of interrogation. In the course of such interrogation by the Investigating Officer P.W.25 to the accused, the accused came out with certain information, which was recorded to writing as per Exhibit P. 24. Pursuant to such information, the accused had led him and the panchas including the photographer to his house where the accused got recovered the suitcase MO. 12 which was used for the purpose of transporting the dead body of the deceased child and the jute cord-MO. 13 of the like which have been used as strangulating material and also for lying the hands and legs of the deceased child. It would be of some relevance to note here itself that the doctor PW. 18 who examined the suitcase MO. 12, has clearly opined that it is possible to stuff the dead body of the deceased child into the suitcase MO. 12 and also it is possible for a person to carry such filled suitcase MO. 12 from Harihar to Davangeri. The said opinion furnished by the doctor P.W. 18 in this regard is as per Exhibit P.23. No doubt, it was sought to be argued on behalf of the appellant-accused that it looks very strange for the Investigating Officer PW.25 to visit the house of the accused and to arrest him in connection with this case when there was no finger of suspicion pointed out against the accused. The said contention advanced on behalf of the appellant-accused though appears to be attractive at the first blush, the further probe into the matter would indicate the hollowness of the said contention. In the instant case, as we have already stated the Investigating Officer PW.25 after he took up further investigation in this case had first visited the house of the deceased and made enquiries and it is only thereafter he had visited the house of the accused and arrested him from his house for the purpose of interrogation and when interrogated the accused had come out with certain information which had relevance to the crime. That apart, the evidence of the PW.9 Smt. Sharadamma would show that when she came outside the house and did not find the deceased child Akhila anywhere near the house, she had heard the cries like that of the deceased child Akhila from the house of the accused and she had gone there to enquire with the accused whether her grand child is to be found in his house. The accused however told her that her grand child Akhila is not to be found in his house. It is also in the evidence that the deceased child Akhila used to visit the house of the accused quite frequently. If in this backdrop, the Investigating Officer P.W.25 had to arrest the accused from his house for the purpose of interrogation and during the course of interrogation if the accused were to come out with certain information relating to the crime, the same does not sound strange. It is to be seen therefore that there were enough clues for the Investigating Officer to suspect the accused in the commission of the offence though neither the parents nor the grandmother of the deceased child had any suspicion against the accused. It was also contended on behalf of the appellant-accused, that looking to the photograph of the deceased child Exhibit P. 1 it is practicably impossible to stuff the dead body of the deceased child into the suitcase MO. 12. But in the instant case, the Investigating Officer had got examined the suitcase MO. 12 by the doctor PW.18 who conducted the postmortem examination on the dead body of the deceased child to find out whether the dead body of the deceased child could be stuffed into the suitcase MO. 12 and he has clearly opined that it is possible to stuff the dead body of the deceased child into the suitcase MO. 12. It is pertinent to note that the doctor PW. 18 had actually seen the dead body of the deceased child while conducting the postmortem examination and that further he had actually seen and examined the suitcase MO. 12 and has given his opinion as per Exhibit P.23. The doctor PW. 18 besides being a responsible witness and a totally independent witness has no reason to depose falsely against the accused. In the face of such evidence given by the doctor PW.18 with reference to the suitcase MO. 12, we are unable to accept the contention advanced on behalf of the appellant-accused. Now adverting back to the evidence of the Investigating Officer PW.25, it would show that thereafter, that is, after effecting the recovery of the suitcase MO. 12 from the house of the accused, the accused had led him and the panchas to a jeweller's shop called 'Vigneshwara Jewellers' situated at Vijayalakshmi Road in Davangere where he got recovered the ornaments MOs. 1 and 2 belonging to the deceased child Akhila, which were sold by the accused to the said jeweller PW-10 on the evening of 27.9.2004 at about 5.30 P.M. That is to say, on the very same day when the deceased child Akhila was found to be missing from the house, the ornaments belonging to the deceased child Akhila viz., MOs.l and 2 were found in the possession of the accused. Thereafter, the accused had led them to a shop from where the gunny bag MO.6 was purchased by him. It was the same gunny bag in which the dead body of the deceased child was found abandoned in one of the compartments of the Inter City train at the Hubli platform. No doubt, nothing was recovered from the said shop pointed out by the accused. But this would certainly reflect upon the conduct of the accused who pointed out the shop from where the gunny bag MO.6 was purchased under which the dead body of the deceased child was concealed and left abandoned in one of the compartments of the Inter City train. Likewise, the accused had also pointed out the place where he had consumed the liquor and the bar-attender of the liquor shop found him carrying the suitcase and the gunny bag. The accused had also pointed out the place where he transferred the dead body of the deceased child from the suitcase MO. 12 into the gunny bag MO.6 and also the place where he had actually put the gunny bag containing the dead body of the deceased child into one of the compartments of the Inter City train at the Davangere Railway platform. Though nothing had been recovered from any of these places pursuant to the voluntary statement made by the accused, they would certainly speak of the conduct of the accused. All these places could be known only either to the person committing the crime or to the person witnessing the crime. If the accused were to point out all these places, it would show that the accused may be either an eye-witness to the incident or a person committing the crime. Therefore, though the pointing out of certain places by the accused pursuant to a voluntary statement made by him may not be admissible under Section 27 of the Evidence Act in view of the fact that nothing was recovered from these places, it would certainly be admissible under Section 8 of the Evidence Act as to the conduct of the accused in knowing all these places which have relevance to the crime in question.
27. Apart from the fact that there is nothing to disbelieve the evidence of the Investigating Officer-PW.25 in this regard, it stands corroborated from the evidence of the PWs.6, 10, 11 and 15 and as also from the contemporaneous records and photographs that were taken at each place of their visit. There is no valid reason to disbelieve the evidence of any of these witnesses. If the evidence of these witnesses and that of the Investigating Officer PW.25 has to be rejected solely on the ground of improbability, then the improbability should be lit large on the face of their evidence. To attempt to isolate a particular fact from the surrounding circumstances and to discuss the logical inference may be useful mental exercise. But it is wholly out of place in any judicial decision. Judge's experience of life is undoubtedly an important fact in evaluating the evidence placed before him. But he must judge the actions and reactions of the accused and the witnesses before him from their standard.
28. It was contended on behalf of the appellant-accused that at the instance of PW.6 the accused had been falsely implicated in the case. No doubt, the accused has stated in the course of his statement recorded under Section 313 Cr.P.C. that PW.6 and one Chandrappa had some vengeance against the accused. But, that by itself is not sufficient to discard the evidence of the Investigating Officer-PW.25 and the other witnesses including the photographer to disbelieve the recovery effected at the instance of the accused as well as the places pointed out by the accused pursuant to the voluntary statement made by him. In fact, the suggestion made on behalf of the defence in the cross-examination is that PW.6 and Chandrappa had set-up Smt. Sharadamma-PW.9 to implicate the accused. But this on the face of it is false. This is because at no point of time either Smt. Sharadamma PW.9 or any of the two parents of the deceased child PWs.2 and 3 had raised any suspicion against the accused. What they had stated in the course of their evidence before the Court is the facts and those facts have not been disputed even by the accused. Further, it is difficult to believe that the Investigating Officer PW.25 and the other prosecution witnesses would have obliged P.W.6 to falsely implicate the accused in such ghastly crime.
29. In our judgment, the evidence of these witnesses relating to the recovery of MOs. 1 and 2 and pointing out of the various places by the accused which have relevance to the crime, are clearly acceptable and convincing. There is absolutely no reason for us to disbelieve such evidence.
30. It is well known that many criminals particularly those that are not hardened criminals, are likely to be in a state of abject surrender when they are caught. At that stage, they are likely to be in a mood to give out the truth. It is only as time passes, their feelings get stabilised and they try to fight for their lives or liberty as the case may be. This is the experience of criminologists.
31. The evidence of PW.9 Smt. Sharadamma would show that as soon as she came from inside the house and found the deceased child Akhila to be missing from near her house, she had heard the cries like that of the deceased child Akhila from the house of the accused and that she had gone near the house of the accused to enquire about the deceased child and on being so enquired by her, she was told by the accused that the deceased child Akhila did not come to his house. Her evidence would further show that the accused was found leaving the house on the very same day at about 4 p.m. in the evening with a suitcase MO-12. This evidence of the grandmother of the deceased child PW.9 besides being not challenged in the cross examination by the defence, stands corroborated not only from the evidence of PWs.2 and 3 but also from the evidence of PWs.7 and 8. The evidence of PWs.7 and 8 would further indicate that though the accused made them to believe that he would be going to Shimoga, had in fact got down at a place from the auto rikshaw in order to proceed towards Davangee. In fact, the recovery effected at the instance of the accused would show that the accused had visited Davangere on the very same day evening and had sold the ornaments of the deceased child Akhila to PW. 10 at his shop.
32. We therefore find that though this is a case of circumstantial evidence, the Investigating Officer conducted a very detailed investigation and to the best of his ability, he collected all the material relevant to prove the guilt of the accused. As we have already stated, the appellant-accused was arrested from his house at Harihar and the evidence against him is the recovery of MOs-1 and 2 belonging to the deceased and also the pointing out of various places which have relevance to the crime pursuant to the voluntary statement made by the accused to the Investigating Officer P.W.25 during the course of interrogation. Further, the accused was found leaving the house with the suitcase MO. 12 and telling a lie that he would be going to Shimoga though he in fact went to Davangere where he had disposed of the two ornaments of the deceased child MOs-1 and 2 at the shop of PW. 10. All these circumstances which are brought on record by the prosecution would point out to the guilt of the accused. The accused has no satisfactory explanation as to how he came to be in possession of such articles MOs-1 and 2 and also as to how he came to know of all such places which are connected with the crime. The fact of possession of MOs-1 and 2 with the accused coupled with the other circumstances established by the prosecution would only lead to the conclusion that the accused is responsible for the death of the deceased child Akhila. The removal of the articles MOs-1 and 2 from the person of the deceased child and concealment of the dead body of the deceased child in a gunny bag which was found abandoned in one of the compartment of the Inter City train, more so, when the accused has no case that he had come to possess MOs-1 and 2 from some other person and that further he had come to know of such places for any other reason.
33. The incriminating circumstances enumerated above, unmistakably and inevitably lead to the guilt of the accused and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the accused. Further, during the time when the accused was questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances appearing against him, the accused instead of making atleast an attempt to explain or clarify the incriminating circumstances inculpating him and connecting him with the crime, by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the trial court, not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all have been only explained by the accused and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to the court when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court in the case of State of Maharashtra v. Suresh reported in : (2000)1SCC471 . That missing link to connect the accused with the crime, we find in this case, provided by blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death of the deceased and the cause for the death of the deceased child Akhila.
34. For all these reasons we have no hesitation to agree with the finding of the trial court holding the accused guilty of the offences punishable under Section 302 IPC for committing the murder of the deceased child Akhila and for robbing her of her ornaments MOs-1 and 2 worn by her under Section 392 IPC and also for trying to cause disappearance of the evidence of murder under Section 201 IPC.
35. We, therefore, confirm the conviction of the appellant accused for the offence punishable under Section 302, 392 and 201 of IPC recorded by the trial court
36. This leaves us with the question of sentence imposed by the trial court for the offence under Section 302 IPC. The trial court has awarded the extreme penalty of death sentence for the offence punishable under Section 302 IPC and has made a reference under Section 366 Cr.P.C. to this Court for confirmation of the sentence of death passed against the accused.
37. It was contended on behalf of the appellant/accused that even if the evidence on record establishes that the accused was responsible for taking away the life of an innocent child Akila, aged about two or three years, that by itself cannot bring the case to the category of the rarest of rare cases and in this connection, the learned Counsel for the appellant/accused has placed reliance upon the two decisions of the Hon'ble Supreme Court in the case of Rahul @ Rao Sab v. State of Maharashtra reported in 2005 SCC (CRL) Page 1516 and in the case of Surendra Pal Shivbalakpal v. State of Gujarath reported in 2005 SCC (CRL) Page 653.
38. We find considerable force in the submission made on behalf of the appellant/accused. In this connection, we would like to make reference to the two decisions of the Hon'ble Supreme Court in the case of Bachan Singh v. State of Punjab reported in : 1980CriLJ636 and Machhisingh v. State of Punjab reported in 1983 SCC (CRL.) Page 681.
39. In Bachan singh's case, the Constitution Bench of the Supreme Court at para 132 summed up the position as follows:
132. To sum up, the question whether or not death penally serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners' argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people's representatives in Parliament, has repeatedly in the last three decades rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware - as we shall presently show they were - of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it try the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302, Penal Code is unreasonable and not in the public interest We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19.
40. Similarly in Machhi Singh's case in para 38, the position was summed up as follows:
38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case:
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'Offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
41. The position is again reiterated in Devender Pal Singh v. State of NCT of Delhi and Anr. reported in 2002 SCC (CRI.) 978 thus:
Para 58. From Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab, the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed:
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 arouse 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 hired assassin for money or reward; or cold-bloodedmurder 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 for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc. is committed not far personal reasons but in circumstances which arouse social wrath; or in cases 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 a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-viswhom 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 fight of the aforesaid propositions and taking into account the answers to the questions 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.
42. What could be gathered from the above decisions of the Hon'ble Supreme Court is that while deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance has to be struck between the aggravating and the mitigating circumstances. That is to say that a balance- sheet of aggravating the mitigating circumstances has to be drawn up.
43. The Trial Court has awarded the extreme penalty of death sentence to the accused for the offence Under Section 302 of IPC and has submitted the proceedings to this Court for the confirmation of the sentence of death passed against the accused. Be it noted, that Section 354(3) of Cr.PC specifically records that in the event of a sentence of death, the Court must state special reasons for such a sentence. Let us see for ourselves as to whether in fact the Trial Court white awarding the extreme penalty of death sentence to the accused has recorded any special reasons therefor and whether the Trial Court has drawn up a balance-sheet of aggravating and mitigating circumstances. In para 6 of the impugned Judgment, the Trial Court has recorded as under:
6. The children are equated to God. Society sees god, through children and their activities. A healthy society would never think of treating a child cruelly. It would not tolerate even the parents of such child, if they have treated it cruelly. The accused was well known to the deceased child and others in the family. From the evidence of P.W.9 we can make out that she could not doubt about the accused till he was arrested and the facts were disclosed. The child has gone to the accused seeking love and affection. The accused has betrayed it. How much evil his mind could have been to take away the life of such an innocent helpless child is something which cannot be imagined. Society certainty would not be comfortable with the company of such evil minded persons. Whether the accused who has taken away the life of a young and innocent child for a meagre profit had got a right to live. Whether the accused who has taken away the life of a young and innocent child for a meagre profit has got a right to live. Whether any sentence other than the death sentence could be adequate in the given circumstance has to be considered. My conscience does not permit to take lenient view in imposing sentence on the accused. He does not deserve it. Hence, I am of the considered view that awarding of death sentence is the only proper punishment to the accused for the offence punishable Under Section 302 of the Indian Penal Code.
44. This, however in our view, does not satisfy the statutory requirement as envisaged Under Section 354(3) of Cr.PC, since the same cannot be termed to be a special reason for imprisonment of such a penalty. In every incidence of murder, brutality is involved. Brutality, obviously would be an existing factor, but how the same did take place is the relevant and necessary material to be considered. It is no doubt true, that the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal etc., Imposition of appropriate punishment is the manner in which the courts respond to the cry of the society for justice against criminals. Justice demands that court should impose punishment befitting the crime, so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of criminals, but also the rights of the victim of the crime and the Society at large while considering the imposition of appropriate punishment While it is true, punishment disproportionately severe ought not to be passed but that does not even sloth the law courts, however, with an option to award the sentence which would be manifestly inadequate having due regard to the nature of the offence since an inadequate sentence would not sub-serve the cause of justice to the Society. In the contextual fact, we do not find the brutality of such a nature so as to exercise the discretion of passing an order of capital punishment -undoubtedly, brutality is involved but that brutality by itself will not bring it within the ambit of rarest of rare cases. Admittedly, this is a case which rests entirety upon the circumstantial evidence. The material evidence placed on record would indicate that the accused was a neighbor of PW-9. He has a wife and a male child aged about 4 or 5 years. The accused did not have a female child. He had a lot of affection and love towards the deceased child Akila. The accused, at the relevant point of time, was a mason while his wife was engaged in preparing Rotis in the house of others. The incident in question took place on 27.9.2004 and we are now in 2006. The accused was aged about 31 years at the time of this incident. As we have already stated, the accused has a wife and a male child who may have to be maintained now out of the paltry earnings of the wife of the accused. There is nothing on record to show that the accused had any criminal antecedents. We are conscious of the fact that none of these circumstances individually taken can be considered as sufficient to impose the lesser sentence, but cumulatively they leave different impressions in our mind more so when the case of the prosecution rests entirely upon the circumstantial evidence. We have come to the conclusion, but not without hesitation, that ends of justice will be met if the appellant/accused is sentenced to suffer imprisonment for life for the offence Under Section 302 of IPC. On the wake of the aforesaid and having regard to the nature of the offence and the methodology adopted, we are convinced that the punishment awarded to the accused here is in excess of the requirement of the Constitution and as such, while recording our concurrence as recorded by the Trial Court, in the Judgment impugned, as regards the guilt of the accused Under Section 302 of the IPC, we are inclined to modify the sentence of death to that of life imprisonment under Section 302 of IPC against the accused.
45. We are therefore, not inclined to confirm the extreme penalty of death sentence imposed against the accused for the offence under Section 302 of IPC. Hence, we set aside the sentence of death passed against the accused for the offence Under Section 302 of IPC and instead we sentence the appellant/accused to undergo imprisonment for life for the offence punishable Under Section 302 of IPC.
46. We accordingly, sentence the appellant/accused to undergo imprisonment for life for the offence punishable Under Section 302 of IPC. We are, however, not inclined to interfere with the sentences passed against the accused by the Trial Court for the other offences punishable Under Section 392 and 201 of IPC. We therefore, the confirm the sentences passed by the Trial Court against the appellant-accused for the offences punishable under Sections 392 and 201 of IPC as they do not in any way warrant our interference.
47. In the result, therefore, the Criminal Reference made by the Trial Court under Section 366 of Cr.PC in Crl.RC No. 1/2006 and the appeal filed by the appellant/accused Under Section 374 of Cr.PC are both stand disposed of in the following manner or with the following order:
(1) The extreme penalty of death sentence passed against the appellant/accused by the Trial Court for the offence Under Section 302 of IPC is hereby set aside and instead, the appellant/accused is sentenced to undergo imprisonment for life for the offence punishable Under Section 302 of IPC. The Reference made by the Trial Court Under Section 366 of Cr.PC is rejected. To be more precise, the Reference made by the Trial Court Under Section 366 of Cr.PC for confirmation of the death sentence passed against the accused for the offence Under Section 302 of IPC is rejected and instead, the appellant accused is hereby sentenced to undergo imprisonment for life for the offence punishable Under Section 302 of IPC.
(2) The conviction of the accused for the offences punishable under Sections 302, 392 and 201 of IPC by the Trial Court is hereby confirmed. The extreme penalty of death sentence awarded by the Trial Court for the offence Under Section 302 IPC, is modified to that of life imprisonment but the sentences passed against the appellant/accused for the other offences under Sections 392 and 201 of IPC are hereby confirmed. That is to say, except modification of the sentence of death to that of life imprisonment for the offence Under Section 302 of IPC., the sentences passed against the appellant/accused for the other offences punishable under Sections 392 and 201 IPC are left undisturbed and they stand confirmed. Consequently, the appeal filed by the appellant/accused against his conviction and sentence in Crl.Appeal No. 11/2006 stands dismissed.
(3) All the substantive sentences imposed against the appellant/accused are directed to run concurrently.
48. Thus the Criminal Appeal filed by the appellant/accused stands dismissed and the death reference made by the trial Court under Section 366 of Cr.PC stands rejected.