B.A. UMESH versus REGISTRAR GENERAL, HIGH COURT OF KARNATAKA
[2016] 5 S.C.R. 438, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Facts
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[2016] 5 S.C.R. 438 
B.A. UMESH 
v. 
REGISTRAR GENERAL, HIGH COURT OF KARNATAKA 
(Criminal Misc. Petition Nos. 4213-4214 of2016) 
IN 
(Review Petition (Criminal) Nos. 135-136 of201 I) 
IN 
(Criminal Appeal Nos. 285-286of2011) 
OCTOBER 03, 2016 
[RANJAN GOGOi, PRAFULLA C. PANT AND A.M. 
KHANWILKAR, JJ.) 
Code of Criminal Procedure, 1973: s.235(2) - Hearing on 
question of sentence - Plea that no separate date for hearing on 
sentence was given by trial court as such for violation of s.235(2), 
sentence of death cannot be affirmed - Held: There is no mandate 
in s.235(2) to fix separate date for hearing on sentence - It depends 
on the facts and circumstances as to whether a separate date is 
required for hearing on sentence or parties feel convenient to argue 
on sentence on the same day - As such, merely for the reason that 
no separate date is given for hearing on the sentence, the review 
petition cannot be allowed. 
Sentence/Sentencing: Death sentence -
Petitioner having 
criminal record - Committed murder and rape - Trial court convicted 
him ulss.376, 302 and 392 and passed death sentence - High Court 
upheld conviction and sentence - Appeal before Supreme Court 
dismissed - Review petition - Court declined to interfere with 
conviction and sentence -
Petition u/s.235(2) for open hearing -
Submission confined only on the point of sentence - Prayer for 
commutation of sentence - Held: In view of criminal history of the 
petitioner, the age of 30
years of the petitioner (at the time of 
incident) cannot be a ground to show any kind of leniency on 
sentence - Petitioner committed crimes not only before the incident, 
but also within two days, subsequent to the incident, i.e. another 
robbery in connection with which he was apprehended by the public 
438
B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF 
KARNATAKA 
and handed over to the police - Taken together, the petitioner is a 
menace and threat to the society - The aggravating circumstances 
are grave and far more serious as against the mitigating 
circumstances pointed out on behalf of the petitioner - Jn view of 
facts and circumstances of the case, gravity of the offence, and the 
manner in which the crime is committed and the antecedents of 
petitioner who-is an ex-police official, no sufficient reason made 
out to modify the order of affirmation of death sentence. 
Witness: Child witness - Held: If the statement of the witness, 
aged seven years, has been found natural, trustworthy and without 
any chance of being tutored, it cannot be taken lightly as mitigating 
c ircums lances. 
Disposing of the petitions, the Court 
HELD: 1. It is true that the convict has a right to be heard 
before sentence. There is no mandate in Section 235(2) Cr.P.C. 
to fix separate date for hearing on sentence. It depends on the 
facts and circumstances as to whether a separate date is required 
for hearing on sentence or_ parties feel convenient to argue on 
sentence on the same day. Had any party pressed for !;ieparate 
date for hearing on the sentence, or both of them wanted to be 
heard on some other date, situation could have been different. 
In the present case, the parties were heard on sentence by both 
the courts below, and finally by this Court, as is apparent from 
the judgment
under review. As such, merely for the reason that 
no separate date is given for hearing on the sentence, the Review 
Petition cannot be allowed. [Para 8] (445-B-D] 
2. If the statement of the witness, aged seven years, has 
been found natural, trustworthy and without any chance of being 
tutored, it cannot be taken lightly as mitigating circumstances, 
particularly; in the facts and circumstances of the present case. 
Therefore, the plea that though the testimony of the child (PW-2) 
aged about seven years could be sufficient for holding the 
petitioner guilty of offence for conviction but the death sentence 
should not be imposed on the basis of testimony of seven years 
old child cannot be accepted. (Para 13] (447-D] 
3. In view of criminal history of the petitioner, age of 30 
years of the petitioner (at the time of incident), in the facts and 
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circumstances of the case cannot be a ground to show any kind of 
leniency on sentence. As far as the fact as to leaving PW-2 (seven 
years old child) unharmed is concerned, it is apparent that actually 
the child was left unharmed not because of any compassion on 
the part of the petitioner. Rather he was on a hasty retreat from 
the place of incident. The petitioner appears to have committed 
number of crimes and also escaped from the lawful custody before 
commission of this crime. The worst is that the petitioner 
committed crimes not only before the incident, but also within 
two days, subsequent to the incident, i.e. another robbery in 
connection with which he was apprehended by the public and 
handed over to the police. Taken together, the petitioner is a 
menace and has become threat to the society. On overall analysis 
of facts and circumstances of the case, gravity of the offence, and 
the manner in which the crime is committed read with the 
antecedents of petitioner who is an ex-police official, there is not 
sufficient reason to review or modify the order of affirmation of 
death sentence in the present case. The aggravating 
circumstances are grave and far more serious as against the 
mitigating circumstances. [Paras 19, 20] [450-D-G) 
Tuttu Lodhi @ Pancham Lodhi v. State of Madhya 
Pradesh Cr A.292-293 of 2014 dated 16.09.2016 -
distinguished. 
Aftab Ahmad Khan v. State of Hyderabad AIR 1954
SC 436 : 1955 SCR 588 - held inapplicable. 
Mohd. Arif and others v. The Registrm; Supreme Court 
of India and others 2014 (11) SCR 1009 : (2014) 9 
SCC 737; B.A. Umesh v. Registrar General, High Court 
of Karnataka 2011 (2) SCR 367 : (2011) 3 SCC 85; 
Bachan Singh v. State of Punjab (1980) 2 SCC 684; 
Machhi Singh v. State of Pw1jab 1983 (3) SCR 413 : 
(1983) 3 SCC 470; Dagdu and others v. State of 
Maharashtra 1977 (3) SCR 636 : (1977) 3 SCC 68; 
Tarlok Singh v. State of Punjab 1977 (3) SCR 711 : 
(1977) 3 SCC 218; Deepak Rai v. State of Bihar 2013 
(14) SCR 297 : (2013) 10 SCC 421; Suthendraraja 
alias Suthenthira Raja alias Santhan and others v. State 
through DSPICBI, SIT, Chennai 1999 (3) Suppl. SCR 
540 : (1999) 9 sec 323 - referred to.
B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF 
441 
KARNATAKA 
Case Law Reference 
A 
2014 (11) SCR 1009 
referred to 
Para 1 
2on (2) SCR 367 
referred to 
Para6 
(1'!80) 2 sec 684 
referred to 
Para7 
19~~ (3) SCR 413 
referred to 
Para 7 
B 
19F (3) SCR 636 
referred to 
Para9 
197~ (3) SCR 711 
referred to 
Para 10 
2013 (14) SCR 297 
referred to 
Para 11 
1955 SCR 588 
held inapplicable 
Para 15 
c 
1999 (3) Suppl. SCR 540 
referred to 
Para 15 
CRIMINAL APPELLATE JURISDICTION : Criminal Misc. 
Petition Nos. 4213-4214 OF 2016 in Review Petition (Criminal) Nos. 
135-136of2011 in Criminal Appeal Nos. 285-286of2011. 
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Ms. Kiran Suri, Sr. Adv., Amit S. J., Mukesh Kumar Singh, 
Ankolekar Gurudatta, Advs. for the Appellant. 
Ms. Anitha Shenoy, Ms. Srishti Agnihotri, Ms. Surabhi Aggarwal, 
V. N. Raghupathy, Advs. for the Respondents. 
The Judgment of the Court was delivered by 
PRAFULLA C. PANT, J. I. Review Petition (Criminal) Nos. 
135-136 of 2011 are heard in open court, as prayed in Criminal 
Miscellaneous Petition Nos. 4213-4214 of2016, in the light of decision 
of this Court in Molu/. Arif (Int/ otlters v. Tlte Registr"r, Supreme 
Court of Indi" "nd otlters (2014) 9 SCC 737. The Review Petitions 
were earlier dismissed by circulation vide order dated 07.09.2011 
affirming the dismissal of Criminal Appeal Nos. 285-286of2011, whereby 
death sentence awarded to the review petitioner, stood affirmed. 
2. Brief facts of the case are that Jayashri (deceased), after death
of her husband, used to live with her son PW-2 Suresh, aged seven 
years, in Bhuvaneshwarinagar, Bangalore, as a tenant of PWc8 Lalitha 
Jaya. On 28.02.1998 as usual the deceased brought back her son at 
1.00 p.m. from the school. After lunch at home, the son went out to play 
with his friends. When PW-2 Suresh returned home at about 5.00 p.m., 
he noticed that petitioner B.A. Umesh going out through hall and told 
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him that he was "uncle Venkatesh". He (petitioner) further told him that 
his mother (deceased) was possessed with some evil spirits, as such, he 
· had tied her hands and was going to bring a doctor. Thereafter, the 
petitioner left the house with a bag. PW-I 0 Basvaraju and PW-I I Natesh 
also saw the petitioner going out of the house with the bag. When 
Suresh went into the room, he saw his mother lying flat on the ground 
with blood on the floor. She was tied with a saree at one end, and the 
other end was tied with the window. As the deceased did not respond to 
call of her son Suresh, he went to the neighbour CW-7 Kusuma Shetty, 
and told her as to what he had seen. Kusuma Shetty called CW-6 
Geetha Hegde and PW-8 Lalitha Jaya and all the three saw through 
window that Jayashri was lying on the ground. Thereafter PW-8 talitha 
Jaya called PW-7 Bylappa, a police constable, who used to live in the 
locality. In turn, PW-7 Bylappa rang PW-9 Inspector Papanna, who 
came to the spot with PW-6 Constable Garudappa. The police personnel 
saw Jayashri lying dead on the floor with genitals exposed and blood 
oozing from her vagina. Articles in the house were lying scattered. The 
dog squad, a photographer and a finger print expert were called at the 
place of incident. Crime No. I 08 of 1998 was registered at the police 
station Peenya Circle, Yashvanthpur Sub Division Taluk Bangalore 
District, Bangalore City
and PW-29 Inspector B.N. Nyamagowda took 
up the investigation. PW-14 A. Kumar, police constable from dog squad, 
PW-16 Jaganath, photographer, and PW-13 R. Narayiin~ppa, finger print 
expert of the police department prepared their reports. The d_ead body 
was sealed and inquest report was prepared in the presence of PW-2 
Suresh, PW-3 Lakshmamma, and PW-4 Maare Gowda, and the same 
was sent for post mortem examination. PW-26 Dr. Somashekar 
conducted autopsy on the dead body and opined that the deceased was 
smothered after commission of sexual assault. On 02.03.1998 at about 
2.30 p.m., petitioner B.A. Umesh was arrested while committing another 
robbery in the house of Smt. Seeba. On interrogation, he disclosed 
having committed several crimes at various places. He also made 
disclosure about the robbed articles. The police took him to the house, 
where he used to live as tenant, to verify the disclosures made by him 
about the robbed articles kept by him. As many as 191 articles, including 
23 items stolen from the house of the deceased, were recovered by the 
police from said house, and a mahazar (Ext. P-11) was prepared. PW-
22 Manjula, sister of the deceased identified the articles seized. The 
Test Identification Parade was held on 30.03.1998 by PW-24 K.S.
B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF 
443 
KARNATAKA [PRAFULLA C. PANT, J.] 
Ramanjanappa, Taluka Executive Magistrate, whereafterthe seized items . A 
were sent for examination to Forensic Science Laboratory. On completion 
of investigation, a charge-sheet was filed against the petitioner for his 
trial in respect of offences punishable under Sections 376, 302 and 392 
of Indian Penal Code (IPC). On committal of case to the Court of 
Sessions, the charge with three heads was framed against the petitioner/ 
accused who pleaded not guilty and claimed to be. tried. 
3. Prosecution produced twenty nine witnesses and their evidence 
was recorded by the trial court whereafter the same was put to the 
petitioner B.A. Umesh under Section 313 of Criminal Procedure Code 
(Cr.P.C.) and opportunity was given to him to adduce the evidence in 
defence. After hearing the parties the trial court (Sessions Judge, Fast 
Trek Court-VII, Bangalore) vide its judgment and order dated 26.10.2006, 
convicted the accused/petitioner under Sections 302, 3 76 and 392 IPC. 
(We are not discussing the prosecution evidence in detail as the Review 
Petition is pressed only on the point of sentence.) 
4. The trial court heard the parties on the quantum of sentence, 
and considering gravity of offence and criminal history of the accused 
and other aggravating and mitigating circumstances, vide order dated 
27.10.2006, the convict/petitioner (B.A. Umesh) was sentenced to death 
under Section 302
IPC and he was directed to be hanged by neck till he 
is dead. The trial court further awarded sentence of rigorous imprisonment 
fora period of seven years to the convict and directed him to pay fine of 
Rs.25,000/- under Section 376 !PC. He was further sentenced to rigorous 
imprisonment for a period often years and was directed to pay fine of 
Rs.25,000/- under Section 392 IPC. The record was sent to the High 
Court ofKarnataka under Section 366 Cr.P.C. for confirmation of death 
sentence. The Reference was registered as Reference No. 3 of 2006. 
The convict filed Criminal Appeal No. 2408 of2006 under Section374(2) 
Cr.P.C. against his conviction and sentence recorded by the trial court. 
5. The High Court heard the parties on the Criminal Reference 
No. 3 of2006 and Criminal Appeal No. 2408 of2006, and disposed of 
the same vide common judgment and order dated 04. l 0.2007. The 
conviction of the petitioner was affirmed by the High Court on all the 
three counts, i.e. under Sections 302, 376 and 392 !PC. However, on 
the point of sentence, one of the Hon'ble Judges (Hon'ble Mr. Justice 
R.B. Naik) while agreeing with sentence on other counts, directed the 
sentence of imprisonment for life on the charge of murder with the 
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observation that the convict shall not be entitled to any remission, and his 
imprisonment shall remain until the term of his natural life. The another 
Hon'ble Judge, who was part of the Bench (Hon'ble Mr. Justice V.G. 
Sabhahit) confirmed the conviction and sentence of the petitioner on all 
the three counts, as awarded by the trial court, including the sentence of 
death under Section 302 !PC. In view of difference of opinion, the 
matter was heard by the third Judge (Hon'ble Mr. Justice S.R. 
Bannurmath) under Section 392 Cr.P.C. After hearing the parties, the 
third Judge agreed with Hon'ble Mr. Justice V.G. Sabhahit that it is a 
case of "rarest of rare" category and, vide judgment and order dated 
18.2.2009, confirmed the sentence of death, and dismissed the criminal 
appeal. 
6. Aggrieved by the above mentioned judgment and order of the 
High Court, Criminal Appeal Nos. 285-286 of2011 were filed before 
this Court on behalf of the petitioner, and after hearing the parties, the 
same were dismissed vide judgment and order dated 01.02.2011 (reported 
in (2011) 3 SCC 85 as B.A. Umeslt v. Re1:istrar General, Hi1:1t Court 
of Karnataka). Thereafter, the petitioner filed Review Petition (Crl.) 
Nos. 135-136 of2011. After consideration of the same (by circulation), 
opining again that it is a case of rarest of rare, this Court declined to 
interfere with the judgment and order dated 01.02.2011 passed in
the 
criminal appeals. Consequently, these Criminal Miscellaneous Petitions 
were filed, for open hearing, after law laid down by this Court in 2014 
dealing with the matter of death sentence in Moltd. Arif (supra). 
7. At the time of open hearing Ms. Kiran Suri, learned senior 
counsel appearing for the petitioner, submitted that she is confining her 
submissions only on the point of sentence of death, and pleaded for 
commutation of sentence to imprisonment for life. Referring to law laid 
down in Bae/tan Singlt v. State of Punj<tb [(1980) 2 SCC 684) and 
Macltlti Singh v. St<tte of Punjab [(1983) 3 SCC 470), following 
mitigating circumstances are pointed out on behalf of the petitioner: -
(i) 
The accused was young (aged about 30 years) at the time of 
alleged incident. 
(ii) 
The petitioner/accused left seven years boy (PW-2) unharmed. 
(iii) 
The murder was not premeditated. 
(iv) 
One of the Judges of the High Court, on sentence opined that the 
convict be sentenced to imprisonment for life.
B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF 
445 
KARNATAKA [PRAFULLA C. PANT, J. ] 
(v) 
The case is of circumstantial evidence. 
(vi) 
Previous criminal history is not of rape and murder. 
8. In addition to above, it is contended on behalf of the petitioner 
(Review Applicant) that since no separate date for hearing on sentence 
was given in the present case by the trial court, as such for violation of 
Section 235(2) Cr.P.C., the sentence of death cannot be affirmed. We 
have considered the argument of Ms. Suri. It is true that the convict has 
a right to be heard before sentence. There is no mandate in Section 
235(2) Cr.P.C. to fix separate date for hearing on sentence. It depends 
on the facts and circumstances as to whether a separate date is.required 
for hearing on sentence or parties feel convenient to argue on sentence 
on the same day. Had any party pressed for separate date for hearing 
on the sentence, or both of them wanted to be heard on some other date, 
situation could have been different. In the present case, the parties 
were heard on sentence by both the courts below, and finally by this 
Court, as is apparen! from the judgment under review. As such, merely 
for the reason that no separate date is given for hearing on the sentence, 
the Review Petition cannot be allowed. 
9. In Dagdu and ot/iers v. State of Maltaras/1tra1 Goswami, J. 
observes as under: -
· 
"90. I would particularly emphasise that there is no mandatory 
direction for remanding any
case in Santa Singh v. State of 
Punjab ((1976) 4 SCC 190) nor is remand the inevitable recipe 
of Section 235(2), Code of Criminal Procedure, 1973. Whenever 
an appeal Court finds that the mandate of Section 235(2), Cr PC 
for a hearing on sentence had not been complied with, it, at once, 
becomes the duty of the appeal Court to offer to the accused an 
adequate opportunity to produce before it whatever materials he 
chooses in whatever reasonable way possible. Courts should avoid 
laws' delay and necessarily inconsequential remands when the 
accused can secure full benefit of Section 235(2), Cr PC even in 
the appeal Court, in the High Court or even in this Court. We 
have unanimously adopted this very course in these appeals." 
I 0. In another Three Judge Bench case in Tarlok Singli v. State of 
Punjab1, at para 4, Krishna Iyer, J. writes: -
1 ( 1977) 3 sec 68 (para 90) 
2 (1977) 3 sec 218 
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"4. In Santa Singh v. State of Punjab this Court considering 
Section 235(2), Cr PC held that the hearing contemplated by that 
sub-section is not confined merely to hearing oral submissions but 
extends to giving an opportunity to the prosecution and the accused 
to place before the Court facts and materials relating to the various 
factors bearing on the question of sentence and, if they are 
contested by .either side, then to produce evidence for the purpose 
of establishing the same. Of course, in that particular case this 
Court sent the case back to the Sessions Court for complying 
with Section 235(2), Cr PC. It may well be that in many cases 
sending the case back to the Sessions Court may lead to more 
expense, delay and prejudice to the cause of justice. In such 
cases it may be more appropriate for the appellate Court to give 
an opportunity to the parties in terms of Section 235(2) to produce 
the materials they wish to adduce instead of going through the 
exercise of sending the case back to the trial court. This may, in 
many cases, save time and help produce prompt justice." 
I I. In Deepak Rai v. State of Bilmr-1, yet another Three Judge 
Bench case, Dattu, J. observes in paragraph 54 as under: -
"54. Herein, it is not the case of the appellants that the opportunity 
to be heard on the question of sentence separately as provisioned 
for under Section 235(2) of the Code was not provided by the
courts below. Further, the trial court has recorded and discussed 
the submissions made by the appellants and the prosecution on 
the said question and thereafter, rejected the possibility of awarding 
a punishment Jess harsh than the death penalty. However, the 
High Court while confirming the sentence has recorded reasons 
though encapsulated. The High Court has noticed the motive of 
the appellants being non-withdrawal of the case by the informant 
and the ghastly manner of commissi~n of crime whereby six 
innocent persons as young as 3 year old were charred to death 
and concluded that the incident shocks the conscience of the entire 
society and thus deserves nothing lesser but death penalty." 
12. In the same case (Deepak R<li v. St<lte of Bilmr) quoting 
Lord Denning, this Court further observes: -
"98. On the question of striking a delicate balance between the 
proportionality of crime to the sentencing policy, Lord Denning 
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'(2013)10SCC421
B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF 
447 
KARNATAKA [PRAFULLA C: PANT, J.] 
has observed' as follows on the very purpose of imposition of a 
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punishment: 
".; .. The punishment is the way in which society expresses its 
·. denunciation of wrongdoing; and, in order to maintain respect 
for the law, it is essential that the punishment inflicted for grave 
crimes should adequately reflect the revulsion felt by the great 
majority or-citizens for them. It is a mistake to consider the 
objects of punishments as being a deterrent or reformative or 
preventive and nothing else . . . The truth is that some crimes 
are so outrageous that society insists on adequate punishment, 
because the wrongdoer deserves it, irrespective of whether it 
is a deterrent or not." 
13. It is further submitted on behalf of the petitioner that though 
the testimony of the child (PW-2) aged about seven years could be 
sufficient for holding the petitioner guilty of offence for conviction but 
the death sentence should not be imposed on the basis of testimony of 
seven years old child. We are unable to accept this proposition. If the 
statement of the witness, aged seven years, has been found natural, 
trustworthy and without any chance of being tutored, it cannot be taken 
lightly as mitigating circumstances, particularly, in the facts and 
circumstances of the present case. 
14. It is further argued by Ms. Suri that the probability that the 
accused would commit further criminal acts of
violence and the probability 
that the accused cannot be reformed are the two factors which the 
State has not proved. It is further submitted that in the present case .if 
the life sentence is commuted to imprisonment for natural life of the 
petitioner, the above two factors would lose their significance since the 
petitioner is going to remain in jail for the rest of his life. It is further 
argued that it is not the accused who has to prove the mitigating factors 
but it is for the prosecution to prove that the extreme penalty of death 
needs to be inflicted. It is contended that the reasons given in the order 
sought to be reviewed are not sufficient as to why life imprisonment is 
an inadequate punishment. 
15. Ms. Kiran Suri, learned senior counsel for the petitioner 
referred to the case Aftah Altmad Kltan v. State of HyderabatP, and 
submitted that since two of the Hon'ble Judges hearing the matter of 
4 Ed.: Lord Denning, Master of the Rolls of the Court of Appeal in England, speaking 
to the Royal Commission on Capital Punishment in 1950 
'AIR 1954 SC 436 
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confirmation of death sentence, in the High Court, differed, as such on 
this ground alone, sentence of death can be commuted to imprisonment 
for life. However, in our opinion the case of AftabAllmad Kllan (supra), 
is of little help to the petitioner for the reason that in the present case the 
Hon 'ble Judge, who opined that the convict be awarded the sentence of 
imprisonment for life, himself observed that it is a case of rarest of rare 
category, and it was further observed by him that by making the petitioner 
to serve imprisoT!ment for natural life, it will be more painful for him to 
serve the same. Our attention is also drawn to the case of Sut/1endraraja 
alias Sutllentllira Raja alias Santl1an and otllers v. State tllrougll 
DSPICBI, SIT, Cllennai6• We have gone through the same and it is 
sufficient to say that the majority view in said case does not support the 
argument advanced on behalf of the petitioner. The learned counsel for 
the petitioner also invited our attention to a recent unreported decision of 
this Court in Tuttu Lodhi@Pancham Lodhi Vs. State of Madhya Pradesh 
in Criminal Appeals Nos.292-293 of 201.4 decided on September 16, 
2016. In that case, the Court opined that the facts of the case did not 
make out a "rarest ofrare" case to confirm the death sentence. On that 
basis, the Court proceeded to award sentence of imprisonment for total 
actual period of 20 years. But the
facts of present case are different. 
And now we would discuss the aggravating circumstances of this case. 
16. Ms. Anitha Shenoy, learned counsel appearing for the 
respondent, pointed out following aggravating circumstances in support 
of maintaining the death sentence: -
(i) 
The murder was committed by strangulating a defenseless woman, 
after raping her violently. 
(ii) 
The petitioner committed robbery in addition to committing rape 
and murder. 
(iii) 
The petitioner is not illiterate rustic villager, rather he is an ex-
police official. 
(iv) 
The convict/petitioner has a criminal history of 2 I cases, with 
seven convictions. 
(v) 
After the incident, the emboldened accused-petitioner has 
committed another robbery within just two days and was arrested 
by the police, as proved by PW-18 Siddagangaiah and PW-20 
L!l~shminarasappa. 
(vi) 
Not only the antecedents of the accused are alarming, it is also a 
case where the accused fled twice from lawful custody which 
shows no chances of his reformation. 
'(1999) 9 sec 323
B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF 
449 
. KARNATAKA [PRAFULLA C. PANT, J. ] 
17. Ms. Shenoy further submitted that the petitioner was a police. A 
constable who was dismissed from service on 15 .02.1997 after he was 
found guilty of misconduct. It is further stated that the petitioner, after 
escaping from judicial custody on 18. 07 .1997, has committed the crime 
in question on 28.02.1998 .. It is further submitted that the petitioner who 
committed yet another crime ofrobbery on 02.03 .1998, i.e. within two 
days after the present incident, was convicted in the subsequent case 
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also on 17 .OS .1999, and said conviction was affirmed by the appellate 
court, and finally Special Leave Petition (Crl.) No ........ Of2011 (Crl. 
M.P. No. 23691) was dismissed on 09.12.2011, by this Court. 
18. We have considered the mitigating and aggravating 
circumstances mentioned above. The following chart of history of seven 
convictions recorded against the petitioner is placed before us which 
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shows that there is little hope of rehabilitation and reformation of the 
petitioner: -
S. 
Police 
Crim 
Sessions 
Conviction Offences 
Remarks 
No. 
Station 
eNo. 
cases 
I ACQuittal 
D 
I. 
Peenya P.S. iOl/97 
9'"ACMM 
Convicted 
454-380 
RI for4 
B'lore City 
Court CC 
!PC 
years and 
No.1358/97 
fine of 
Rs.5000/-
2. 
uandhinagar 115197 
~rincipal 
Convicted 
224 IPC 
S.I. for 2 
P.S. 
PMFC Court, 
years and 
Bellary 
fine of 
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h:No.68/98 
Rs.1000/-
3. 
Peenya P.S. 108/98
!OTC 7, B'lore Convicted 
376-392-
Death 
B'lore City 
K:;ity 
302 IPC 
sentence 
SC No. 
'25/99 
4. 
Peenya P.S. 111/98 
~re I, B'lore Convicted 
394-511 
RI for7 
~'lore City 
City 
IPC 
years and 
F 
SCNo.417/01 
fine of 
Rs.2000/-
5. 
Brucept P.S. 49/98 fMFC Court 
Convicted 
224 IPC 
RI for3 
Bellarv 
Bellarv 
months 
6. 
Yeshwantha 
96102 l'" Tr. Court 
Convicted 
41 Cl.(d) 
RI for90 
pur P.S. 
B'lore City 
102 
days 
B'lore City 
Cr.P.C. 
G 
&379-
411-224 
IPC 
7. 
Yelahanka 
J9/99 
2MMCourt 
Convicted 
379 IPC 
RI for6 
0 .S. B'lore 
B'lore City 
months and 
City 
CC No.3 93 /03 
fine of 
Rs. 1000/-
H
450 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
(2016] 5 S.C.R. 
(We have not taken note of cases in which the petitioner was 
acquitted. However, it is also pointed out by learned counsel for the 
State ofKarnataka that the cases in which the petitioner was acquitted 
includes Sessions Case No. 40 of2000 relating to offences punishable 
under Sections 366A, 379, 376, 302 and 201 read with Section 34 !PC, in 
which case victim was pushed into a car, and after snatching her earrings, 
her legs were tied, and rape was committed before committing murder. 
In said case, which related to the incident of06.12. l 996, petitioner was 
acquitted vide judgment and order dated 07.08.2004. It is further 
submitted by the learned counsel that after arrest of the petitioner on 
17 .07 .1997, during custody in said case, on 18.Q? .1997 the petitioner 
escaped from jail for which he was convicted on the charge under Section 
224 !PC.) 
19. Having gone through the criminal history of the petitioner, we 
are of the view that age of 30 years (at the time of incident), in the 
present facts and circumstances of the case cannot be a ground to show 
any kind of leniency on sentence. As far as the fact as to leaving PW-
2 Suresh (seven years old child) unharmed is concerned, it is apparent 
that· actually the child was left unharmed not because of any compassion 
on the part of the petitioner. Rather he was on a hasty retreat from the 
· place of incident. The petitioner appears to have
committed number of 
crimes and also escaped from the lawful custody before commission of· 
this crime. The worst is that the petitioner has committed crimes not 
only before the incident, but also within two days, subsequent to the 
incident, i.e. another robbery in connection with which he was 
apprehended by the public and handed over to the police: Taken together, 
all the above, reveals that the petitioner is a menace and has become 
threat to the society. On overall analysis of facts and circumstances of 
the case, gravity of the offence, and the manner in which the crime is 
committed read with the antecedents of petitioner who is an ex-police 
official, we do not find sufficient reason to review or modify the order of 
affirmation of death sentence in the present case. 
20. Therefore, on careful comparison of aggravating and mitigating 
circumstances in the present case, as above, and keeping in view the 
principle of law laid down by this Court on the point, we are of the firm 
opinion that the aggravating circumstances are grave and far more serious 
as against the mitigating circumstances pointed out on behalf of the 
.Petitioner. As such, even after open hearing, we are not inclined to
B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF 
451 
KARNATAKA [PRAFULLA C. PANT, J.] 
allow the Review Petitions or modify the judgment and order passed by 
A 
this Court in Criminal Appeal Nos. 285-286 of201 l dismissed by this. 
Court on 01-02-2011. Accordingly the Review Petition (Criminal) Nos. 
135-136of2011 stand dismissed. The Criminal Miscellaneous Petitions 
stand disposed of. 
Devika Gujral 
Petitions disposed of. 
B 
•