Swamy Shraddananda @ Murali Manohar ... vs State Of Karnataka

The deceased desired for a son and she was made to believe by the appellant that he was capable of blessing her with a son. Akbar Khaleeli and the deceased separated in the year 1985. The deceased thereafter married the appellant on 17.04.1986. They started living together at the said house. She had executed a General Power of Attorney and a Will in his favour. However, despite her marriage with the appellant, the deceased was maintaining her relationship with her parents and daughters. Mrs. Sabah Khaleeli, second daughter of the deceased (PW-5) had all along been in touch with her.

4. She ultimately informed the Ashok Nagar Police Station by giving a written complaint about missing of her mother. A missing complaint was registered on 10.06.1992. No serious effort, however, was made to find out the whereabouts of the deceased. PW-5 approached the higher authorities resulting in the investigation of the matter being entrusted to the Central Crime Branch. Apprehending arrest, Appellant obtained anticipatory bail with a condition that he would attend the police between 6 p.m. to 8 p.m. on every Monday and shall also make him available to the police. He applied for relaxation of the said condition and by an order dated 3.12.1993, it was directed that the appellant shall appear before the police authorities on every Monday once in three months.

5. The investigation was entrusted to one C. Veeraiaha (PW-37). He suspected the appellant herein. He was interrogated on 28.03.1994, whereupon he made a voluntary statement which was marked as Ex. P-175. He stated in great details as to the manner in which he had killed his wife and disposed of her dead body. He also disclosed as to how a wooden box of size 2 x 7 x 2 was made, a pit was dug and how the dead body was buried there. He narrated that how with the help of Raju he had put the box into the pit covered with mud and on the next day with the help of some masons brought by the said Raju kadapa stone slabs were put on the pit and the adjacent land and cemented the place.

7. An Executive Magistrate Syed Ejaj Ahmad (PW-3) was called for exhumation of the dead body. He asked a doctor to conduct exhumation proceeding. On 30.03.1994, Dr. Nissar Ahmed (PW-14) came to the place of occurrence for the said purpose. Appellant was asked as to whether he was ready to show the spot as per his earlier statement. The entire proceeding of exhumation of the dead body was video-graphed. It took place at about 10.30 a.m. on the said day. Appellant with a chalk piece marked the spot. Coolies accompanying the party as per instructions of the appellant himself, dug the earth of the said place whereupon a box was noticed. The plank of the lid of the wooden box was removed. A bed, a nighty, pillow and bed sheets were recovered. Channaiah who had come along with Dr. Nissar Ahmed removed the scalp, skull and hairs of the head which were detached from the skull and other bone pieces. He also removed the pieces of the bones. Another Doctor Shri Thiruvanakkarasu also came there. They joined the bones and fixed the skull and mandible in orderly manner. It was found to be that of a human skeleton. The mother of the deceased Smt. Gauhar Taj Namazie identified a ring which was embedded with red stone and two other black rings as belonging to the deceased. The nighty which was recovered was identified to be belonging to the deceased by the maid servant who had been working in the house.

8. The post mortem examination commenced at 4.45 p.m. on 30.03.1994 which ended at about 6 p.m.

9. Appellant was, thereafter, charged for commission of murder of his wife. Before the learned Trial Judge, 39 prosecution witnesses were examined. There was no eye-witness to the occurrence. The prosecution was based on circumstantial evidence.

13. Before the High Court, a contention was raised that before imposition of sentence, the appellant had not been granted adequate opportunity to make a representation as was mandatorily required under Sub-section (2) of Section 235 of the Code of Criminal Procedure, 1973. The High Court gave the appellant an opportunity of being heard. Before the High Court, the appellant accepted that he was instrumental in burying the dead body stating:

14. The High Court, however, affirmed the judgment of conviction and sentence.

22. Dr. Nissar Ahamed who examined himself as PW-14 in his evidence proved the exhumation of the dead body. It, as noticed hereinbefore, was conducted by the Taluka Magistrate PW-3. Upon removal of the detached skull, mandible, carpal and tarsal, palm and bones from the pit of feet, all the said bones were assembled on plastic paper. A Human skeleton was formed. There was a foul smell. According to him, all the bones were intact. The skeleton was that of a human body. In the post mortem examination, it was found:

26. The bones were sent for DNA test to Hyderabad Forensic Science Laboratory through Forensic Science Laboratory, Bangalore. The test was conducted by Dr. Laljit Singh, Scientist, who was examined as PW-24. According to him, he and Dr. G.V. Rao (PW-17), another scientist in Hyderabad together carried the process of DNA isolation and testing from Exs. A to D, i.e., from blood of the father, teeth of the deceased, hair of the deceased and blood of the mother in two tests being Polymerase Chain Reaction (PCR) and HLA DQ typing both the tests confirmed that the deceased was the offspring of the said Mirza Gulam Hussain Namazie and Gauhar Taj Begum Namazie.

34. PW-5 Sabah Khaleeli, was the daughter of the deceased through her first husband. She in her deposition categorically stated that she had spoken to her mother on 19.04.1991. She was not available on phone from May, 1991 onwards. Gauhar Namazee (PW-25) was the mother of the deceased. She in her deposition stated that she had last seen the deceased on 13.04.1991. She had not been cross-examined on the said point. It is also not disputed that PW-18 and PW-19, who were husband and wife, were engaged by the deceased. They saw the deceased in the company of the appellant in the morning of 28.05.1991, for the last time. The said witnesses were staying in a servant quarter in the said premises. PW-18 was working as gardener-cum-handyman; whereas PW-19 was working as maid servant, since 1988. They stated in unison that they had seen the deceased at about 07.30 A.M. on that day. According to PW-19, she went to the kitchen to prepare tea for the couple and kept the tea cups on the dining table. She in no uncertain terms stated that the cups of tea were taken by the appellant to the bed-room where the deceased was reading a newspaper. PW-19 while sweeping the house was called by the deceased and was instructed to clean the articles kept in the showcase instead of sweeping. They, however, received a telegram at about 10.00 a.m. whereby they were informed that the sister-in-law of PW-19 was sick at Gudisuvarapally in the State of Andhra Pradesh. They sought for leave and some money. They were permitted to leave Bangalore and were asked to collect the requisite amount after some time. They came back to their quarters and started packing their goods. At about 1.30 p.m. they went back to the house. PW-18, however, was said to have been asked by the appellant herein to shift a wooden box kept in the guest house to the bed room before leaving. They together with some others took a large wooden box from the guest house and kept the same inside the bed room, where they found the deceased sleeping on the bed. They were thereafter paid a sum of Rs.1,200/- towards their salary and additional sum of Rs.500/- towards travelling expenses. They left for their home. They came back after a couple of days, but did not find the deceased. The said two witnesses in their depositions corroborated each other.

61. In our country, therefore, each case may have to be considered on its own merit.

63. Justice Brennan while interpreting Eighth Amendment (Amendment VIII: (Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted) of US Constitution observes in Furman:

(Emphasis supplied)

(Emphasis supplies)

81. It would, therefore, appear that cases where death penalty is upheld are those where murder was committed of a large number of persons or by more than one person in a brutal or systematic manner.

83. With utmost respect, I am of the opinion that the doctrine of proportionality which is often referred to in the judicial pronouncements in regard to the sentencing policy required to be judicially adopted should not apply in a case of imposition of capital punishment. Precedent should not be contrary to Parliamentary law; far less the decision of a Constitution bench of this Court

97. Keeping the abovementioned other characteristics of the crime, we now delve into whether this instance can be categorized as a "rarest of rare"

98. Also it is to be realized that in criminal cases character of accused is immaterial by the mandate of section 53 and 54 of Indian Evidence Act. The same should not factor in the discussions at the sentencing stage. If that be so, bad character of the accused by itself should not be a determinative factor.

103. For the reasons aforementioned, the appeal is dismissed, subject to the modification in sentence, as directed hereinbefore.