B.A.Umesh vs Regr.Gen.High Court Of Karnataka

3. According to the prosecution, Jayashri, mother of Suresh (P.W.2) and sister of Manjula (P.W.22), was married to one Dr. Maradi Subbaiah who died about two years prior to 28.02.1998 on which date the incident which resulted in S.C.No.725 of 1999 is alleged to have occurred. After the death of her husband, Jayashri and her son Suresh, were staying in premises No.14/8 situated at Dasarahalli, Bhuvaneshwarinagar, Bangalore, as a tenant of one Lalitha Jaya (P.W.8). Suresh was studying in Upper K.G. in Blossom English School. His mother would drop him to school at Bagalkunte 3 at 8.30 a.m. and would bring him back at 1.00 p.m. after classes were over.

4. On 28.2.1998, Jayashri took Suresh to school as usual at 8.30 a.m. and brought him back at 1.00 p.m. and they had lunch together in the house. After lunch, Suresh went out to play with his friends and apart from Jayashri there was no one else in the house. Suresh returned to the house at about 5.00 p.m. and saw the accused, B.A. Umesh, in the hall of the house who introduced himself as "Uncle Venkatesh" and told Suresh that his mother, Jayashri, was possessed by the devil and that he had, therefore, tied her hands and was going to bring a Doctor. The accused then left the house with a bag filled with articles. According to the prosecution, Basvaraju (P.W.10) and Natesh (P.W.11) saw the accused going out of Jayashri's house with the bag on 28.2.1998 at about 4.30 p.m. Suresh then went into the room and saw his mother lying 4 flat on the ground with blood on the floor and her hands tied together with a sari at one end and the other end of the sari was tied to a window. As she did not respond to his voice, Suresh went to Kusuma Shetty (C.W.7), a neighbour, and told her what he had seen. Kusuma Shetty called Geetha Hegde (C.W.6) and Lalitha Jaya (P.W.8) and together they went near Jayashri's house with Suresh and through the window they saw Jayashri lying on the ground. Lalitha Jaya then called Bylappa (P.W.7), a Police Constable, living in the same locality who telephoned Papanna (P.W.9), the Inspecting Officer, who came to the place of occurrence with Police Constable Garudappa (P.W.6). In the meantime, on being informed, A. Kumar (P.W.14) a Police Constable working in the Dogs Squad, Jagannath (P.W.16), a Police Photographer and R. Narayanappa (P.W.13) a Police Inspector and finger-print expert arrived at the place of occurrence. B.N. Nyamaagowda (P.W.29), the Investigating Officer, 5 found that Jayashri was lying dead on the floor with her genitals exposed and blood oozing from her vagina. The doors of an almirah in the house were open and articles in the house were lying scattered. He prepared a report and sent the same through P.W.6 to the Police Station to register a crime. P.W.6 took the said report to Peenya Police Station and the same was registered as Crime No.108 of 1998. He then prepared a First Information Report and sent the same to Court. A copy of the F.I.R. was also sent to P.W.29, the Investigating Officer. P.W.14 had come from the Dogs Squad with Dhrona, a sniffer dog, who having sniffed the dead body and Jayashri's clothes went towards the pipeline and returned. P.W.16, the Police Photographer, took photographs of the dead body and the scene of offence. P.W.13, the finger-print expert, found finger-prints on a wall clock and also on the handle of the almirah (Exts. P.14 and P.15). P.W.29, thereafter, conducted inquest over 6 the dead body in the presence of Panch witnesses, P.Ws.2, 3 and 4, and sent the dead body for Post- mortem examination to Dr. Somashekar (P.W.26) who after conducting the Post-mortem on Jayashri's dead body opined that death had occurred due to smothering after commission of sexual assault.

5. On 2.3.1998 at about 2.30 p.m., on receipt of an information in the Central Room that the public had apprehended a thief, P.W.18 went to the spot and came to learn that the person who had been apprehended had tried to commit a robbery in the house of Smt. Seeba and had caused bleeding injuries to her person. On enquiry it transpired that the name of the apprehended person was Umesh Reddy and that he had committed many crimes at various places, including the house of the deceased. Umesh Reddy volunteered to show the place where he had kept the robbed articles. He, thereafter, revealed that his name was Venkatesh 7 and that he had taken the premises belonging to P.Ws.5 and 17 on lease. According to the prosecution, the appellant approached Maare Gowda (P.W.4) to get him a place on rent and P.W.4 took him to his relative M.R. Ravi (P.W.5) who along with Jayamma (P.W.17) was the owner of a tenement in which he agreed to rent a premises to the appellant on a monthly rental of Rs.350/-. On the agreed terms the appellant occupied the premises belonging to P.Ws.5 and 17.

6. It is the further case of the prosecution that the appellant voluntarily led the Police and the Panchas P.Ws.12 and 29 to the premises under his occupation as a tenant under P.Ws.5 and 17 and showed them 191 articles, including 23 items said to have been recovered from the house of the deceased, which were seized under mahazar (Ex.P.11). The remaining articles were seized in connection with other cases registered against the 8 appellant. The body of the deceased was sent for Post-mortem on 3.3.1998 and on the same day the sample finger prints of the appellant was taken by Mallaraja Urs (C.W.25) in the presence of P.W.29. The appellant was sent for medical examination and was examined by P.W.26 who issued the wound certificate regarding the injuries found on the body of the appellant. P.W.22, Manjula, the sister of the deceased, identified the articles (M.Os.1 to

22) seized under mahazar (Ex.P.11) as articles belonging to Jayashri and also stated that Jayashri had been married to Dr. Maradi Subbaiah. Thereafter, on the requisition of P.W.29 the Taluka Executive Magistrate (P.W.24) conducted Test Identification Parade on 30.3.1998 and P.Ws.2, 10, 11 and 17 identified the appellant at the said T.I. Parade. The articles seized in the case were sent by P.W.29 to the Forensic Science Laboratory and after receiving the serology report, P.W.29 completed the investigation and filed Charge Sheet 9 against the appellant of having committed offences punishable under Sections 376, 302 and 392 I.P.C. The case was committed to the Court of Sessions and charge was framed against the appellant under Sections 376, 302 and 392 I.P.C. The appellant pleaded not guilty to the charges and claimed to be tried.

7. The prosecution examined 29 witnesses who proved Exts. P1 to P48(a). During cross- examination of P.Ws.5, 16, 17 and 18, the defence proved Exts.D1 to D4 through the said witnesses. M.Os. 1 to 32 were marked on behalf of the prosecution. The statement of the appellant under Section 313 Cr.P.C. was recorded. The defence of the appellant was one of denial. No witness was examined on behalf of the appellant. After considering the submissions of the learned Public Prosecutor and the learned counsel for the appellant and after appraising the oral and 10 documentary evidence, the trial Court held that the prosecution had proved beyond all reasonable doubt that the appellant had committed the offences with which he had been charged and found him guilty of the offences punishable under Sections 376, 302 and 392 I.P.C. After hearing the appellant and the learned counsel for the appellant on the question of sentence, the trial Court sentenced the appellant to suffer 7 years rigorous imprisonment and to pay a fine of Rs.25,000/- and in default of payment of the fine to suffer further rigorous imprisonment of 2 years for the offence punishable under Section 376 I.P.C. The appellant was also sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.25,000/- and in default of payment of the fine to suffer further rigorous imprisonment of 2 years for the offence punishable under Section 392 I.P.C. The appellant was lastly sentenced to death by hanging for the offence punishable under Section 302 by the trial Court 11 which also made a reference to the High Court under Section 366 Cr.P.C. for confirmation of the death sentence, and the same was renumbered as Criminal Reference Case No.3 of 2006. Being aggrieved by the judgment of conviction and sentence passed against him by the trial Court, the appellant also preferred Criminal Appeal No.2408 of 2006.

14. Ms. Suri then addressed the third aspect of the prosecution case relating to lifting of the finger print of the appellant from the handle of the almirah in the room of the deceased. It was contended that the procedure adopted for obtaining the finger print of the appellant by P.W.25, while he was in custody, for the purpose of comparison with the finger print lifted from the handle of the almirah in the room of the deceased, left sufficient room for doubt about the authenticity of the finger print taken from the appellant for the purpose of comparison. It was submitted that rather curiously all the other finger prints in the room, including the one taken from the wall clock, were smudged and were of no use for the purpose of comparison, which also gave rise to doubts as to whether the finger prints alleged to have been taken from the handle of the almirah in the room of 21 the deceased, had actually been lifted from the said place. Ms. Suri submitted that the finger print of the appellant taken by P.W.25 when the appellant was in custody, should have been taken before a Magistrate to ensure its authenticity. Furthermore, although, the said finger print was taken on 8.3.1998, the same was sent to the F.S.L. only on 15.3.1998.

25. Ms. Shenoy submitted that from the Inquest Report it appears that the body of Jayashri was found in the bedroom lying on her back. Both her hands had been bound with a yellow, green and red- coloured flower designed sari and the other end of the sari had been tied to an inner window bar in the room. The tongue of the deceased was found to be protruding and both the eyes were closed. A designed sari was on the body and a pink-coloured blouse and white brassiere was on her shoulders. A red tape-like cloth was near the head of the deceased and there was bleeding from the deceased's 32 genitals and blood was also found on the floor. In addition, there were injuries on her right breast and abrasions near her right elbow and stomach. Ms. Shenoy also referred to the deposition of P.W.9 who was a Mahazar witness, wherein it was stated that the deceased Jayashri was lying naked, there were abrasions on her body and both of her hands were tied with a red tape lengthy cloth and the other end was tied to a window. There were scratch marks on her breasts and blood oozing out of her genitals. What was also stated was that there were strangulation marks on her neck. Ms. Shenoy submitted that the Inquest Report and the Mahazar of the scene of occurrence was further corroborated by the evidence of P.W.1 (Police), P.W.2 (son of deceased), P.W.3 (a neighbour), P.W.8 (landlady of the deceased) and P.W.29 (the Investigating Officer). Ms. Shenoy then urged that the Post- mortem report indicated that there was a faint ligature mark present on the front and sides of the 33 neck over the thyroid cartilage in front 2 inches away from the right ear and 2.5 inches from the left ear. The other injuries noted were :

56. On the question of sentence we are satisfied that the extreme depravity with which the offences were committed and the merciless manner in which death was inflicted on the victim, brings it within the category of rarest of rare cases which merits the death penalty, as awarded by the Trial Court and confirmed by the High Court. None of the mitigating factors as were indicated by this Court in Bachan Singh's case (supra) or in Machhi Singh's case (supra) are present in the facts of the instant case. The appellant even made up a story as to his presence in the house on seeing P.W.2 Suresh, who had come there in the meantime. Apart from the above, it is clear from the recoveries made from his house that this was not the first time that he had committed crimes in other premises 67 also, before he was finally caught by the public two days after the present incident, while trying to escape from the house of one Seeba where he made a similar attempt to rob and assault her and in the process causing injuries to her. As has been indicated by the Courts below, the antecedents of the appellant and his subsequent conduct indicates that he is a menace to society and is incapable of rehabilitation. The offences committed by the appellant were neither under duress nor on provocation and an innocent life was snuffed out by him after committing violent rape on the victim. He did not feel any remorse in regard to his actions, inasmuch as, within two days of the incident he was caught by the local public while committing an offence of a similar type in the house of one Seeba.

The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency -- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along 45 the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

40. Ms. Shenoy submitted that applying the tests indicated in Bachan Singh's case (supra), the facts of the present case were not covered by any of the mitigating circumstances enunciated in the two sets of cases and all subsequent cases following the same and consequently, there could be no reason for commuting the death sentence awarded to the appellant and the appeal was, therefore, liable to be dismissed.

52. Ms. Suri has raised certain questions relating to the identification of the appellant by P.Ws 2, 10, 11 and 17. It has been submitted that the picture of the appellant had been published in the newspapers after the incident. There may have been some substance in the aforesaid submission had it not been for the fact that being the immediate neighbours of the appellant, P.Ws 10 and 11 had occasion to see the appellant earlier. As far as P.W.17 is concerned, she was the appellant's landlady at the relevant point of time. The decision in Musheer Khan's case (supra) cited by Ms. Suri is not, therefore, of any help to the appellant's case.

55. We, therefore, have no hesitation in confirming the conviction of the Appellant under Sections 376, 392 and 302 IPC.

57. In such circumstances, we do not think that this is a fit case which merits any interference. 68 The Appeals are, accordingly, dismissed and the death sentence awarded to the Appellant is also confirmed. Steps may, therefore, be taken to carry out the sentence.