IRAPPA SIDDAPPA MURGANNAVAR versus STATE OF KARNATAKA

[2021] 11 S.C.R. 51

IRAPPA SIDDAPPA MURGANNAVAR

STATE OF KARNATAKA

(Criminal Appeal Nos. 1473-1474 of 2017)

NOVEMBER 08, 2021

[L. NAGESWARA RAO, SANJIV KHANNA AND

B. R. GAVAI, JJ.]

Penal Code, 1860: ss. 302, 376, 364, 366A and 201 – Rapeand murder – Prosecution case that accused raped and murdered afive year old girl, and then disposed of her body, tied in gunnybag, into the stream – Conviction and sentence for commission ofoffence u/s. 302, 376, 364, 366A and 201 – Upheld by the HighCourt – On appeal, held: On overall view of the evidence and witnessstatements adduced by the prosecution, the chain of circumstancesaffirmatively establishes the guilt of the appellant – Contradictionsand inconsistencies highlighted in the prosecution’s case, do notcreate reasonable doubt – Circumstances relied upon are fullyestablished – They are conclusive in nature and tendency – Chainof evidence is so complete as not to leave any reasonable groundfor conclusion consistent with the innocence of the appellant – Factsestablished consistent only with the hypothesis of the guilt of theaccused and exclude every hypothesis except the one proved – Thus,the order of the courts below convicting the appellant for offencesu/s. 302, 376, 364, 366A and 201 upheld.

Sentence/Sentencing: Death sentence – Imposition of –Commission of rape and murder of 5 year old – Conviction andsentence of the appellant for the offences u/ss. 302, 376, 364, 366Aand 201 – Commutation of sentence of death imposed – Held: Thereis hope for reformation and rehabilitation – There are sufficientmitigating factors to commute the sentence of death imposed by thecourts below into imprisonment for life – Young age of the appellantat the time of commission of the offence (23/25 years), his weaksocio-economic background, absence of any criminal antecedents,non pre-meditated nature of the crime, and that the accused hasspent nearly 10 years 10 months in prison are other extenuatingfactors – No doubt the appellant has committed an abhorrent crime,

Aincarceration for life would serve as sufficient punishment andpenitence for his actions – Thus, death sentence commuted toimprisonment for life – However, the appellant not entitled topremature release/remission for the offence u/s. 302 until he hasundergone actual imprisonment for at least thirty years.

BCode of Criminal Procedure, 1973: s. 235(2) – Infraction of– Plea of appellant-accused that by passing common order onconviction and sentencing, the High Court contravened by nothearing the petitioner separately on sentencing – Held: Adequateand sufficient opportunity has been afforded to the appellant toplace all the relevant materials on record.C

Disposing of the appeals, the Court

HELD: 1.1 On an overall view of the evidence and witnessstatements adduced by the prosecution, the chain of circumstancesaffirmatively establishes the guilt of the appellant. Though theDcounsel for the appellant has painstakingly sought to highlightcontradictions and inconsistencies in the prosecution’s case, itis believed that the same do not create reasonable doubt in themind of this Court. The five-fold test prescribed in SharadBirdhichand Sarda’s case are satisfied as the circumstances reliedupon are fully established; they are conclusive in nature andEtendency; the chain of evidence is so complete as not to leaveany reasonable ground for conclusion consistent with theinnocence of the appellant; the facts established are consistentonly with the hypothesis of the guilt of the accused and excludeevery hypothesis except the one proved. The decision of theFHigh Court as well as the District and Sessions Court convictingthe appellant for rape and murder of R etc., thus, is upheld. [Para21][67-G-H; 68-A-B]

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88 – relied on.

G1.2 The defence is entitled to rely upon contradictions inocular evidence furnished by the eye-witnesses and highlight anyincongruity between their versions and the prosecution’s case.It is not universally affirmed position that the witnesses mustbe confronted by the defence to seek advantage of thecontradictions. [Para 12][64-D]H

1.3 On the aspect that PW-7, PW-8, PW-9 and PW-10 areplanted witnesses, at first the site map is taken note of whichindicates the place/location where PW-7 resides and also thepathway from the village to the stream, which is about kilometrelong. PW-15 has deposed that there being waste shrubs next tohis field on the banks of the stream, it was difficult to go to thestream through the shrubs. Next to his land, lie the fieldsbelonging to others, beyond which there was graveyard wherepeople did not usually visit at odd hours. Secondly, there are goodand sound reasons to believe that the date 30th December 2010deposed to by PW- 8, PW-9 and PW-10 is on account of failure torecollect the exact date when they had seen the appellant with agunny bag and the girl on his shoulder, and not on account offalse deposition on the factum that the appellant was seen carryingthe child at about 8:30 p.m. The witnesses are village residentsand as their evidence was recorded nearly year after theoccurrence, they may not have possibly remembered the date ofsighting, for the reason that dates, especially those in theGregorian calendar, may not be of much relevance or consequencein the rural areas. [Para 13, 14][64-E-H; 65-A-B]

1.4 On 29th December 2010, PW-4 had filed missingperson report at about 5:00 p.m. On 30th December 2010, theparents of R, PW-1 and PW-19 had also reached the village. Incase PW-8, PW-9 and PW-10 had seen the appellant carrying thegirl child on his shoulder on 30th December 2010, they wouldhave immediately accosted him and questioned him about thegirl, for by then the disappearance of R had become commonknowledge for all villagers. Therefore, the date on which PW-8,PW-9 and PW-10 saw the appellant with the small girl on hisshoulder was not 30th December 2010. Rather, 30th December2010 was the date on which these witnesses had informed othervillagers that they had seen the appellant carrying small girl onhis shoulder about two days earlier. On careful scrutiny of thestatements made by PW-8, PW-9 and PW-10, it becomes apparentthat they had met PW-1 on 30th December 2010 and informedhim about their sighting. The inconsistency of dates, thus, can beexplained as inadvertence or strained memory due to passage oftime, not resulting in displacing the case against the appellantthat the prosecution has made out. [Para 15][65-B-F]

A1.5 There is no room left for doubt that recovery of thedead body of R was based on the appellant’s statement. The deadbody was concealed in gunny bag with two stones and immersedin the stream which had about midriff-high water. The fact thatPW-9 and PW-10 had deposed on almost identical lines does not,in any way, reflect discrepancy, but rather possible lapse onBthe part of the court recording their evidence. [Para 16][65-G-H;66-A]

2.1 The impugned judgment reveals extensive study ofcase-law on part of the High Court in considering the deathsentence imposed by the trial court. On an overall view of theCfacts and circumstances of the matter, the High Court was of theopinion that the sentence of death should be confirmed, that therewere no mitigating circumstances to be found, and that there weremany aggravating circumstances as the appellant was known toR, who reposed complete trust and faith in him and willinglyDallowed him to take her along, but she was raped and murderedin the most gruesome manner and her body was dumped into thestream. The motivation of the appellant, the vulnerability of thedeceased R, the enormity of the crime and the execution thereof,the Court considered the case as falling in the “rarest of therare” category, and warranting the sentence of death to deterEothers from committing atrocious crimes, and to give emphaticexpression to society’s abhorrence of such crimes. [Para 23][68-D-G]

2.2 The statement of objection filed by the respondent Stateseeks to draw force from the observations of the High Court. InFaddition, the respondent State has defended the death sentenceon the grounds that the actions of the appellant constitute graveand uncommon crime endangering the moral fabric of the society.The submission is that the matter falls in the category of ‘rarestof the rare’ cases as the appellant, under the pretext of giving

biscuits, committed rape and murder of five-year old girl, andGthrew her dead body into the stream. The deceased R could nothave provided resistance, much less provocation for the crime.Relying on the data compiled by the National Crime RecordsBureau which shows that an average of 77 acts of rape werecommitted daily in India in the year 2020, the counsel has soughtHa deterrent penalty for the actions of the appellant. [Para 25][70-C-E]

2.3 As regards the plea that there has been violation ofs. 235(2) of the Code of Criminal Procedure, which mandatesthat the accused must be heard, in light of the principle laid downin Dagdu’s case, adequate and sufficient opportunity has beenafforded to the appellant to place all the relevant materials onrecord. [Para 26][70-F-G; 71-D]

2.4 The trial court recorded that the death sentence wasawarded on the ground that “the crime was committed in anextremely diabolical manner and that it was cruel, barbaric andrevolting.” It has been rightly pointed out that the trial courtmerely noticed that the appellant was of young age (23 / 25 years)belonging to very poor family, but did not consider these asmitigating factors. The High Court noted that there are nomitigating circumstances at all. This observation is incorrect. Tobegin with, it is clear that the appellant had no criminalantecedents, nor was any evidence presented to prove that thecommission of the offence was pre- planned. There is no materialshown by the State to indicate that the appellant cannot bereformed and is continuing threat to the society. On the contrary,it can be seen from the Death Sentence Prisoner Nominal Rollissued by the Chief Superintendent, Central Prison, that theconduct of the appellant in jail has been ‘satisfactory’. Theappellant’s conduct in prison would be considered as expiationfor his past deeds, also reflecting his desire to reform and take ahumane turn. Furthermore, the young age of the appellant at thetime of commission of the offence (23/25 years), his weak socio-economic background, absence of any criminal antecedents, nonpre-meditated nature of the crime, and the fact that he has spentnearly 10 years 10 months in prison have weighed with as otherextenuating factors, which add up against imposition of deathpenalty which is to be inflicted only in rarest of the rare cases.The respondent State has not shown anything to prove thelikelihood that the appellant would commit acts of violence as acontinuing threat to society; per contra, his conduct in the prisonhas been described as satisfactory. There is no doubt that theappellant has committed an abhorrent crime, and for this it isbelieved that incarceration for life will serve as sufficientpunishment and penitence for his actions, in the absence of anymaterial to believe that if allowed to live he poses grave and

Aserious threat to the society, and the imprisonment for life wouldalso ward off any such threat. It is believed that there is hope forreformation, rehabilitation, and thus the option of imprisonmentfor life is certainly not foreclosed and therefore acceptable.[Para 28][72-D-G; 73-A-D]

B2.5 There are sufficient mitigating factors to commute thesentence of death imposed by the Sessions Court and confirmedby the High Court into imprisonment for life, with the directionthat the appellant would not be entitled to premature release/remission for the offence under Section 302 of the Penal Codeuntil he has undergone actual imprisonment for at least thirtyC(30) years. While maintaining other sentences, it is directed thatthe sentences shall run concurrently and not consecutively, asthe appellant has been sentenced to imprisonment for life for theoffence under section 376 of the Code, which sentence is alsoimposed for the offence under section 302 of the Code. [Para 29]D[73-D-F]

2.6 The conviction of the appellant for the offences underSections 302, 376, 364, 366A and 201 of the Code and thesentences awarded for the offences under Sections 376, 364, 366Aand 201 of the Code is upheld. The death sentence is commutedEto that of life imprisonment with the stipulation that the appellantwould not be entitled to premature release/remission beforeundergoing actual imprisonment of 30 years for the offence underSection 302 of the Code and further the sentences awarded wouldrun concurrently and not consecutively. [Para 30][73-F-G; 74-A]

FShanti Devi v. State of Rajasthan (2012) 12 SCC 158 :[2012] 9 SCR 226; Ranjit Kumar Haldar v. State ofSikkim (2019) 7 SCC 684 : [2019] 9 SCR 754; SantaSingh v. State of Punjab (1976) 4 SCC 190 : [1977] 1SCR 229; Dagdu and Others v. State of Maharashtra(1977) 3 SCC 68 : [1977] 3 SCR 636; ShatrughnaGBaban Meshram v. State of Maharashtra (2021) 1 SCC596; Bantu alias Naresh Giri v. State of Madhya Pradesh(2001) 9 SCC 615 : [2001] 4 Suppl. SCR 298;Purushottam Dashrath Borate v. State of Maharashtra,(2015) 6 SCC 652 : [2015] 5 SCR 1112; Mulla v. State

IRAPPA SIDDAPPA MURGANNAVAR v. STATE OFKARNATAKA

of U.P. (2010) 3 SCC 508 : [2010] 2 SCR 633; Mohanv. State of T.N. (1998) 5 SCC 336 : [1998] 3 SCR 317;Akhtar v. State of UP (1999) 6 SCC 60; Union of Indiav. V. Sriharan alias Murugan and Others (2016) 7 SCC1 : [2015] 14 SCR 613.

Modi’s Textbook of Medical Jurisprudence andToxicology, 25th edition (2016), Chapter XV – ‘PostMortem Changes and Time of Death’. pg 352 – referredto.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 1473-1474 of 2017.

From the Judgment and Order dated 06.03.2017 of the High Courtof Karnataka, Dharwad Bench, in Criminal Appeal No.2082 of 2013and Criminal Referred Case No. 32 of 2013.

Gaurav Agrawal, Adv. for the Appellant.

Nikhil Goel, AAG, V. N. Raghupathy, Vinay Mathew, Advs. forthe Respondent.

AThe Judgment of the Court was delivered bySANJIV KHANNA, J.

1. The judgment under challenge, passed by the High Court ofKarnataka at Dharwad on 6[th] March 2017, affirms the conviction of theappellant – Irappa Siddappa Murgannavar – under Sections 302, 376,B364, 366A, and 201 of the Indian Penal Code, 1860 (for short, ‘the Code’);and confirms the sentence of death for the offence under Section 302,rigorous imprisonment for life for the offence under Section 376, rigorousimprisonment for six years and fine of Rs.10,000/- with default stipulationfor the offences under Sections 364 and 366A each, and rigorousCimprisonment for two years and fine of Rs.2,000/- with defaultstipulation for the offence under Section 201 of the Code. The sentencesunder Sections 376, 364, 366A, and 201 of the Code are directed to runconsecutively.2. The case of the prosecution is that the appellant subjected theDdeceased R to rape, killed her by strangulation, and then disposed of herbody, tied in gunny bag, into the stream named Bennihalla. As thereare no eye witnesses to the commission of the offences, in order toprove these postulations, the prosecution has relied on three-foldcircumstances: (i) that the appellant took away R from neighbour’shouse on 28[th] December 2010; (ii) that the appellant was last seen byEcertain witnesses carrying R and gunny bag towards the Bennihallastream; and (iii) that based on the disclosure statement of the appellanton 1[st] January 2011, the dead body of R was recovered in gunny bagfrom Bennihalla.

3. R, girl aged 5 years and 2 months, was living with her maternalFgrandfather Rangappa in village Khanapur, Taluka Nargund, DistrictGadag, Karnataka while her parents worked in Mangalore, Karanataka.Rangappa’s neighbours Venkavva Patil (PW-5) and her nephew AjitPatil (PW-6) have testified that on 28[th] December 2010 at about 6:30pm, R had come to their house to watch TV. At about 6:30 pm theGappellant had also come to their house. He was talking to R and took herwith him on the pretext of buying her biscuits. Hanamappa (PW-4), whois the brother of Rangappa, testified that R did not return that night, andin spite of frantic efforts, she could not be traced. The next day, heenquired at Venkavva Patil’s (PW-5) house about R’s whereabouts, wherehe was informed that the appellant had taken R with him. HanamappaH

(PW-4) lodged missing person report re R at Nargund Police Stationon 29[th] December 2010 (Exhibit P-6). This complaint states that on28[th] December 2010, at 9 pm, he was informed by Mallanagowda Kagadal(PW-14) that R was missing, following which he went to his brotherRangappa’s house and learnt from his brother’s daughter, YallavvaMangalore (PW-23), that R had gone to Venkavva Patil’s (PW-5) houseat 6:30 pm to watch TV, and that he, along with other people, triedlocating R but were unsuccessful. The complaint does not mention theinvolvement of the appellant, fact counted on by the counsel for theappellant that will be addressed subsequently. Similarly, YallavvaMangalore (PW-23) has testified that R had gone to her neighbour’shouse at about 6:30 p.m. on 28[th] December 2010 to watch TV. As R didnot return home, they had made enquiries with their neighbour VenkavvaPatil (PW-5) who had confirmed R’s visit to her house for watching TVand that she may have gone out. Yallavva Mangalore (PW-23) had lookedfor R and, on being unsuccessful, informed her father and uncles. Rcould not be located on the said date or on 29[th] December 2010.4. Upon learning from Hanamappa (PW-4) and Yallavva Mangalore(PW-23) that R was missing, her father Sanganabasappa (PW-1) andmother Shivaleela (PW-19) returned to Khanapur on 30[th] December 2010.Thereupon, extensive search for R was undertaken, but she could not befound. Sanganabasappa (PW-1) has stated that he was told by BhimappaTalawar (PW-8), Hanamappa Talawar (PW-10) and others that theyhad seen the appellant carrying his daughter somewhere. He had thenmade complaint at the Nargund Police Station on 1[st] January 2011 at12:30 a.m. (Exhibit P-1), which we would subsequently refer to.Hanamappa (PW-4) has similarly testified that he had learnt from villageresidents Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) andHanamappa Talawar (P-10) that they had seen the appellant carrying Ron his shoulder and going towards the Bennihalla stream. Thereafter,he went to the police station and informed the police about the possibleinvolvement of the appellant. On similar lines, Venkavva Patil (PW-5)has deposed that she learnt from the police that Yallappagouda Kagadal(PW- 7), Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) andHanamappa Talawar (P-10) had seen the appellant carrying gunnybag and the deceased R, walking towards the stream. These evidences,further elaborated below, have been adduced by the prosecution toestablish that the appellant was seen carrying R and gunny bag andwalking towards the stream.

A5. Yallappagouda Kagadal (PW-7), in his sworn statement,confirms the prosecution version that on 28[th] December 2010 at about8:30 p.m. while he was standing near his house, he saw the appellantcarrying child (who was wearing frock) and gunny bag, goingthrough the bus stand road. He thought that the appellant was taking thesaid girl to her house. Subsequently he had informed others and learntBfrom Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) andHanamappa Talawar (PW-10) that they too had seen the appellantcarrying girl child with him at about 8:30 p.m. on 28[th] December 2010.Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) and HanamappaTalawar (PW-10), in their depositions, have corroborated that they hadCseen the appellant carrying girl on his shoulder and gunny bag at 8:30p.m. However, they have stated that the sighting was on 30[th] December2010. We shall examine this inconsistency and variance of the datesubsequently.

6. Ajit Patil (PW-6), in his testimony, has stated that they hadDsearched for the appellant but he had left the village. This had also beena factor, along with others, contributing to the suspicion that the appellanthad kidnapped R with an intention to rape and kill her.

7. The investigating officer B. Vijaykumar (PW-24) has statedthat he had taken charge of the investigation from PSI S.S. KamathagiE(PW-25) on 1[st] January 2011. He searched for the appellant andsubsequently arrested him on the same day in front of one GoudappagoudaHanamantagouda Kagadal. The date and time of arrest as shown in thechargesheet are 1[st] January 2011 at 4:30 am. B. Vijaykumar (PW-24)has testified that the appellant, upon arrest, had made disclosurestatement (Exhibit P-17), wherein he has stated, inter alia, that heFinserted the body of R into bag with two stones, tied the mouth of thebag and threw it into the waters of Bennihalla. Based on the disclosurestatement, the appellant was taken to Bennihalla near the field of oneShrinivasreddi Ramanagouda Hosamani (PW-15) where he showed theplace where he had thrown the dead body of R. On similar lines, RajesabGNadaf (PW-11) and Shankrappa Tadasi (PW-12), in almost identicaltestimonies, have deposed that the appellant had shown the spot inBennihalla where he had submersed the body of R tied in gunny bagalong with two stones. On directions of the police, they dived into thewater and discovered gunny bag, which contained the dead body ofR, along with two stones. The stones were identified by Rajesab NadafH(PW-11) and Shankarappa Tadasi (PW-12) and marked MO.1 and MO.2while the gunny bag was marked MO.3 and the frock worn by R wasmarked as MO.4. The version asserted by Rajesab Nadaf (PW-11) andShankarappa Tadasi (PW-12) is affirmed by the panch witnesses. It isalso avowed by Shrinivasreddi Ramanagouda Hosamani (PW-15) thatthe police had asked two persons to enter the water, who found sacknear the pipe connected to his pump set. The sack was opened to findthe dead body of R along with two stones. The prosecution has laidreliance on these depositions to evidence that the dead body of R wasrecovered from the stream based on the disclosure statement made bythe appellant.

8. Having noted the witness statements and evidence relied uponby the prosecution to prove the circumstances of commission of theoffences, we would examine the implication of the discrepancies in thestatements of witnesses and the prosecution case, which the counsel forthe appellant submits, establish that the prosecution has failed to provethe case against the appellant beyond reasonable doubt.

9. The first discrepancy alleged is predicated on the testimony ofHanamappa (PW-4) and Yallava Mangalore (PW-23) vis-à-vis thetestimony of Venkavva Patil (PW-5) and Ajit Patil (PW-6) regarding thepresence of the appellant in the house of Venkavva Patil (PW-5) on28[th] December 2010 at 6:30 p.m. Counsel for the appellant submits thatthe assertion that appellant took R with him on the pretext of getting herbiscuits is an afterthought and contrived evidence. In this regard, heplaces reliance upon Exhibit P-6, i.e. the complaint filed by Hanamappa(PW-4) on 29[th] December 2010 at 5:00 p.m., which makes no mentionof the presence of the appellant at the residence of Venkavva Patil(PW- 5) and Ajit Patil (PW-6) or that he had taken R with him, in spite ofaverments in witness statements that the factum of the appellant takingR with him had been communicated to Hanamappa (PW-4) before filingof the complaint. Reliance is also placed on the testimony of PSI S.S.Kamathagi (PW-25) who claims that he had visited the village afterrecording the complaint (Exhibit P-6) and made efforts without successto trace R. Our attention was drawn to the FIR (Exhibit P-22) recordedon the basis of statement made by Sanganabasappa (PW-1) in theintervening night of 31[st] December 2010 and 1[st] January 2011. The FIRmentions that Venkavva Patil (PW-5) and Ajit Patil (PW-6) had informedSanganabasappa (PW-1) that the appellant had taken R with him, and

Athat Sanganabasappa (PW-1) came to know of this fact only on 30[th]December 2010. The counsel for the appellant has argued that VenkavvaPatil (PW-5) and Ajit Patil (PW-6) did not name the appellant though Rwas missing from 6:30 p.m. onwards on 28[th] December 2010, and thefirst mention of the appellant’s involvement surfaces only in the FIRdated 1[st] January 2011. Therefore, the evidence of ‘last seen’ propoundedBand based on depositions by Venkavva Patil (PW-5) and Ajit Patil (PW-6) is shaky and doubtful.10. Khanapur is small village, secluded and away from urbanareas or other habitations, which is apparent from the fact that the closestpolice station is located about nineteen kilometres away. HanamappaC(PW-4) who had made the police complaint (Exhibit P-6) on29[th] December 2010, and his neighbours Venkavva Patil (PW-5) andAjit Patil (PW-6) are village dwellers and simple people. Villagecommunities are close-knit, and given the camaraderie, faith and trustamongst the known villagers, Hanamappa (PW-4), Venkavva PatilD(PW-5) and Ajit Patil (PW-6) may not have initially suspected theappellant’s foul play in disappearance of R. The complaint (Exhibit P-6)is short and brief; while mentioning that R was missing, it does not recordthat she may have been raped and killed by someone. This is also evidentfrom Hanamappa’s (PW-4) cross-examination wherein he has statedthat at the time of filing of the complaint, he did not know whether theEappellant had committed an offence. Noticeably, the implication as tothe involvement of the appellant was made shortly thereafter, that is on31[st] December 2010. By then the entire village was in state of alarmand wary that terrible crime had been committed by someone from thevillage. Yallappagouda Kagadal (PW-7), Bhimappa Talawar (PW-8),

FGadigeppa Talawar (PW-9), and Hanamappa Talawar (PW-10) hadcome forward and stated that they saw the appellant carry child towardsBennihalla. The appellant, driver by profession, had gone missingaccording to Ajit Patil’s (PW-6) testimony. Therefore, mere non-inclination to straight-away accuse the appellant who was apparently

close to Venkavva Patil (PW-5) and Ajit Patil (PW- 6) and had come toGtheir house to watch television, should not be ground to thrust asideHanamappa’s (PW-4) version as he had not named the appellant, ordepositions of Venkavva Patil (PW-5) and Ajit Patil (PW-6) that R hadleft with the appellant. One could accept that there could be someexaggeration in the statements of Venkavva Patil (PW-5) and Ajit PatilH(PW-6) to the extent that they had heard the appellant conversing with

R and that he had taken her away on the pretext of giving her biscuit,but this would not in any manner affect the factum that the appellantand the victim R were present in the house of Venkavva Patil (PW-5)and Ajit Patil (PW-6) at 6:30 p.m. on 28[th] December 2010 where theyhad gone to watch TV. It would be rather imprudent to hold that theappellant had not visited the house of Venkavva Patil (PW-5) and AjitPatil (PW-6) on 28[th] December 2010 at 6.30 p.m., when R was alsopresent, and that the appellant had left taking R with him.11. It would be apposite to pay minute attention to the testimoniesof Yallappagouda Kagadal (PW-7), Bhimappa Talawar (PW-8),Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10). Thesevillagers again had no reason to suspect that the appellant, who wascarrying child on his shoulder, was guilty of criminal act of rape andmurder or that he was carrying gunny bag on his shoulder for thepurpose of dumping the victim’s body in the stream. This is understandablefrom the statement of Yallappagouda Kagadal (PW-7) according to whichhe assumed that the appellant was taking the girl to her home. The situationchanged rapidly thereafter, as is duly reflected in the statement made bySanganabasappa (PW-1) on the intervening night of 31[st] December 2010and 1[st] January 2011 wherein he has cast suspicion on the appellant. Thestatement reflects the anger of people in rural environment as faithhad given way to disbelief. By that time, villagers had not been able tolocate R who was last seen with the appellant, who in turn had beenspotted carrying child and gunny bag, and therefore, they suspectedthat R had been raped and killed. There appeared no other reason for Rto have vanished and disappeared, she being girl aged only about fiveyears who had gone to neighbour’s house to watch TV in the evening.The statement of PSI S.S. Kamathagi (PW-25) has not in any waycontradicted the prosecution version or the testimonies ofSanganabasappa (PW-1), Hanamappa (PW-4), Venkavva Patil (PW-5),Ajit Patil (PW-6), Yallappagouda Kagadal (PW-7), Bhimappa Talawar(PW-8), Gadigeppa Talawar (PW-9), Hanamappa Talawar (PW-10), andYallava Mangalore (PW-23).

12. We would now examine the date discrepancy in the courttestimonies of Yallapagouda Kagadal (PW-7), Bhimappa Talawar(PW-8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10),and consider the contention of the counsel for the appellant thatYallapagouda Kagadal (PW-7), Bhimappa Talawar (PW-8), Gadigeppa

ATalawar (PW-9) and Hanamappa Talawar (PW-10) are plantedwitnesses. Yallappagouda Kagadal (PW-7) in his testimony has clearlystated that he had seen the appellant carrying girl on his shoulder atabout 8:30 p.m. on 28[th] December 2010. Contrary to Yallapagouda’s(PW-7) statement relating to the date of sighting, Bhimappa Talawar(PW-8), Gadigeppa Talawar (PW-9), and Hanamappa TalawarB(PW-10), have deposed that they had seen the appellant with gunnybag and girl child on his shoulder on 30[th] December 2010 at about 8:30p.m. This date – 30[th] December 2010 – has been repeatedly mentionedby Bhimappa Talawar (PW-8) and Hanamappa Talawar (PW-10) andonce by Gadigeppa Talawar (PW-9). The counsel for the appellant hasCharped on the inconsistency of these dates. On the other hand, the Statehas contended that this contradiction should have been put to the witnessesin question in their cross-examination by the defence. We would have toreject the contention raised by the State as untenable and fallacious. Itis an accepted position that the defence is entitled to rely uponcontradictions in ocular evidence furnished by the eye-witnesses andDhighlight any incongruity between their versions and the prosecution’scase. It is not universally affirmed position that the witnesses must beconfronted by the defence to seek advantage of the contradictions.13. On the aspect that Yallapagouda Kagadal (PW-7), BhimappaTalawar (PW-8), Gadigeppa Talawar (PW-9) and Hanamappa TalawarE(PW-10) are planted witnesses, at first we take note of the site map(Exhibit P-8) which indicates the place/location where YallappagoudaKagadal (PW-7) resides and also the pathway from the village to thestream, which is about kilometre long. Shrinivasreddi RamanagoudaHosamani (PW-15) has deposed that there being waste shrubs next toFhis field on the banks of Bennihalla, it was difficult to go to the streamthrough the shrubs. Next to his land, lie the fields belonging to others,beyond which there was graveyard where people did not usually visitat odd hours.14. Secondly, we see good and sound reasons to believe that theGdate 30[th] December 2010 deposed to by Bhimappa Talawar (PW- 8),Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10) is onaccount of failure to recollect the exact date when they had seen theappellant with gunny bag and the girl on his shoulder, and not on accountof false deposition on the factum that the appellant was seen carrying

the child at about 8:30 p.m. The witnesses are village residents and astheir evidence was recorded nearly year after the occurrence, theymay not have possibly remembered the date of sighting, for the reasonthat dates, especially those in the Gregorian calendar, may not be ofmuch relevance or consequence in the rural areas.

15. Furthermore, what has weighed with us is the undisputed factthat on 29[th] December 2010, Hanamappa (PW-4) had filed missingperson report (Exhibit P-6) at about 5:00 p.m. On 30[th] December 2010,the parents of R, Sanganabasappa (PW-1) and Shivaleela (PW-19) hadalso reached the village. In case Bhimappa Talawar (PW-8), GadigeppaTalawar (PW-9) and Hanamappa Talawar (PW-10) had seen the appellantcarrying the girl child on his shoulder on 30[th] December 2010, they wouldhave immediately accosted him and questioned him about the girl, for bythen the disappearance of R had become common knowledge for allvillagers. Therefore, the date on which Bhimappa Talawar (PW-8),Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10) saw theappellant with the small girl on his shoulder was not 30[th] December2010. Rather, 30[th] December 2010 was the date on which these witnesseshad informed other villagers that they had seen the appellant carrying asmall girl on his shoulder about two days earlier. On careful scrutiny ofthe statements made by Bhimappa Talawar (PW-8), Gadigeppa Talawar(PW-9) and Hanamappa Talawar (PW-10), it becomes apparent thatthey had met Sanganabasappa (PW-1) on 30[th] December 2010 andinformed him about their sighting. The inconsistency of dates, thus, canbe explained as inadvertence or strained memory due to passage of time,not resulting in displacing the case against the appellant that the prosecutionhas made out.

16. On the question of recovery of the dead body on the basis ofthe appellant’s disclosure statement, we have referred to the statementsof Gadigeppa Talawar (PW-9), Hanamappa Talawar (PW-10), RajesabNadaf (PW-11), Shankarappa Tadasi (PW-12), ShrinivasreddiRamanagouda Hosamani (PW-15) and B. Vijaykumar (PW-24). Thereis no room left for doubt that recovery of the dead body of R was basedon the appellant’s statement. The dead body was concealed in gunnybag with two stones and immersed in the stream which had about midriff-high water. The fact that Gadigeppa Talawar (PW-9) and HanamappaTalawar (PW-10) had deposed on almost identical lines does not, in anyway, reflect discrepancy, but rather possible lapse on the part of the

Acourt recording their evidence. In Shanti Devi v. State of Rajasthan,[1]this Court had considered the factum of recovery of the body of thedeceased at the instance of the accused as strong circumstance forconviction of the accused. Similarly, in Ranjit Kumar Haldar v. Stateof Sikkim,[2] recovery of dead body based on the disclosure statement ofthe accused was considered very strong incriminating circumstanceBagainst her to maintain her conviction.

17. This brings us to the medical evidence and the question whetherit supports the prosecution version that R was raped and murdered on28[th] December 2010. Dr. Girish Maraddi (PW-20) had conducted thepost mortem examination of R on 1[st] January 2011 at 10:00 a.m. HisCreport is detailed and refers to cut lacerated wound over the vagina,anteriorly upto urethra, and the ruptured hymen. There was also softtissue injury of the neck interiorly.

18. The report also states that the cause of death was asphyxiacaused by strangulation and not due to drowning. To confirm the saidDposition, PW-20 had conducted the lung floating test. The post mortemreport states that the body was slightly decomposed and the skin hadalso peeled all over the body. Small and large intestines, as well as thelungs, were congested. The inquest panchnama (Exhibit P-2) recordsthat the face seemed swollen and the skin on the body seemed to be tornEhere and there. It had also become black at some places. The body hadswollen from neck to waist, and at some places the skin was torn andhad turned black in colour. Similarly, legs had swollen and the skin hadtorn, turning black. The post mortem report (Exhibit P-11) records thetime of death as 72-86 hours before the examination. This wouldcorroborate with the prosecution version that R was raped and murderedFon 28[th] December 2010.

19. To affirm our opinion as to the time of death we have studiedthe opinion expressed in Modi’s Textbook of Medical Jurisprudence andToxicology, 25[th] edition (2016), Chapter XV – ‘Post Mortem Changesand Time of Death’. At page 352, the treatise observes that the rate ofGputrefaction of body in water is more reliable than of body exposed to airas the temperature in water is more uniform and the body is protectedfrom air. Ordinarily, the body takes twice as much time in water as in airto undergo the same degree of putrefaction. The process is retarded,

1 (2012) 12 SCC 158, at para 17.H2 (2019) 7 SCC 684

when body is lying in deep water and is well-protected by clothing.However, it is hastened when the body is lying in water contaminatedwith sewage. Flotation of body takes place when gases of decompositionor putrefaction develop within the submerged body. In India, submergedbody comes to the surface within 24 hours in summer and within two tothree days or more, and sometimes in more than week, in winter. Intemperate climates submerged body floats within week in summerand in about fortnight in winter. Power of flotation of decomposedbody is so great that in certain cases it may float to the surface in spiteof being weighted with heavy stone. The duration required for flotationof body depends upon the age, sex, the condition of the body, season ofthe year and water. Bodies which are light in weight have low specificgravity and, therefore, float sooner.

20. In the context of the present case, there is no dispute that theoccurrence had taken place in late December, that is, in winter. Wehave undertaken check to ascertain the temperature range in the villagein late December. As per data, the temperature in the month of lateDecember in Nargund (the taluka in which Khanapur village is located)is between 19 to 29 degrees, and the temperature in water would becertainly lower. Thus, it is clear that putrefaction of the body was retarded.But the body had not floated and risen to the surface. The fact that thebody was swollen and was slightly decomposed, while the skin wasdiscoloured, would indicate that the putrefaction process had indeedstarted. The post mortem report and the inquest panchnama, therefore,confirm the date when the crime was committed and fully corroborateand support the ocular evidence of Sanganabasappa (PW-1), Hanamappa(PW-4), Venkavva Patil (PW-5), Ajit Patil (PW-6), Yallapagouda Kagadal(PW-7), Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9),Hanamappa Talawar (PW-10), Rajesab Nadaf (PW-11), ShankarappaTadasi (PW-12), Shrinivasreddi Ramanagouda Hosamani (PW-15) andB. Vijaykumar (PW-24).21. On an overall view of the evidence and witness statementsadduced by the prosecution, the chain of circumstances affirmativelyestablishes the guilt of the appellant. Though the counsel for the appellanthas painstakingly sought to highlight contradictions and inconsistenciesin the prosecution’s case, we believe that the same do not create areasonable doubt in the mind of this Court. The five-fold test prescribed

Aby Fazal Ali J. in Sharad Birdhichand Sarda v. State of Maharashtra[3]are satisfied as the circumstances relied upon are fully established; theyare conclusive in nature and tendency; the chain of evidence is socomplete as not to leave any reasonable ground for conclusion consistentwith the innocence of the appellant; the facts established are consistentonly with the hypothesis of the guilt of the accused and exclude everyBhypothesis except the one proved. The decision of the High Court aswell as the District and Sessions Court convicting the appellant for rapeand murder of R etc., thus, is upheld.

22. Having established the culpability of the accused, we shallproceed to examine the issue of sentencing. As noted previously, theCappellant has been sentenced to death for the offence under Section302, which sentence has been confirmed by the High Court, along withprison sentences as set out in paragraph 1 of this judgment.

23. The impugned judgment reveals extensive study of case-lawon part of the High Court in considering the death sentence imposed byDthe trial court. On an overall view of the facts and circumstances of thematter, the High Court was of the opinion that the sentence of deathshould be confirmed, that there were no mitigating circumstances to befound, and that there were many aggravating circumstances as theappellant was known to R, who reposed complete trust and faith in himEand willingly allowed him to take her along, but she was raped andmurdered in the most gruesome manner and her body was dumped intothe stream. The court observed that “…when an innocent and helplessgirl of 5 was subject to such barbaric treatment by person whowas in position of her trust, his culpability assumes the proportionof extreme depravity and arouses sense of revulsion in the mind ofFan ordinary person.” The motivation of the appellant, the vulnerabilityof the deceased R, the enormity of the crime and the execution thereof,the Court considered the case as falling in the “rarest of the rare” category,and warranting the sentence of death to deter others from committingatrocious crimes, and to give emphatic expression to society’s abhorrenceGof such crimes.

24. Challenging the order on sentence, the appellant has arguedthat by passing common order on conviction and sentencing, the HighCourt has contravened Section 235(2) of the Code of Criminal Procedure,

H3 (1984) 4 SCC 116

1973 (for short, ‘CrPC’) by not hearing the petitioner separately onsentencing. He has also submitted that the High Court failed to call formitigating circumstances, that there were no aggravating circumstances,that the case does not fall into the category of ‘rarest of the rare’, thatthe appellant was only 25 years old who could be reformed andrehabilitated and is not likely to be menace to the society, that theappellant has undergone lengthy period in custody, that there is nomaterial to suggest that the option of awarding life sentence wasunquestionably foreclosed, and that death sentence should ordinarily beawarded when there is no other alternative left. In addition to theaforesaid, counsel for the appellant has also listed mitigating factors forcommutation of death sentence to life imprisonment as under:

“1) The murder was not committed in pre-planned manner. Thoughrape on child of 5 years is itself grave crime, the manner ofthe committing the crime cannot be said to be gruesome ordiabolical.

2) There is no material led by the prosecution to show that theaccused cannot be reformed. The State has not brought materialto show that the accused is continuing threat to society and theoption of imposing life sentence is unquestionably foreclosed.

3) Young age of the accused is mitigating factor.

4) Lack of criminal antecedent is mitigating factor.

5) Conduct in jail has to be considered.

6) Social economic back ground has not been considered, includingpoverty and lack of education.

7) Perhaps the accused, being unaware of his right to lead evidenceof mitigating circumstances, did not request for time for producingmaterial on this aspect. Though it would not vitiate the sentence,there is sufficient material before this Hon’ble Court for making afurther inquiry into the mitigating circumstances.

8) The accused is in death row for last 9 years since the judgmentof trial court on 08.03.2012.”

The counsel for the appellant has drawn our attention to certificateissued by the Gandhi Research Foundation, Jalgaon which states thatthe appellant had participated in the ‘Gandhi Vichar Sanskar Pariksha’

A2017-18 organised by the Gandhi Research Foundation, Jalgaon. Itappears from the website of the Foundation that it conducts country-wide examination called “GVSP (Gandhian Values for SustainablePeace - Gandhi Vichar Sanskar Pariksha) to inculcate among theyoung generation the art of nonviolence in daily life.” Anothercertificate dated 22[nd] December 2016 issued by the Yogavidya Gurukul,Ba research institute recognised by Pune University, states that theappellant has successfully completed the course Yoga Pravesh. We havealso taken on record the letter dated 4[th] September 2021 from MedicalOfficer, Central Prison Hospital, Belagavi addressed to an advocate,stating that the appellant has been diagnosed with Oral Generalised Sub-CMucosal Fibrosis which is in premalignant condition.

25. The statement of objection filed by the respondent State in thepresent appeal seeks to draw force from the observations of the HighCourt noted above. In addition, the respondent State has defended thedeath sentence on the grounds that the actions of the appellant constituteDa grave and uncommon crime endangering the moral fabric of the society.The submission is that the matter falls in the category of ‘rarest of therare’ cases as the appellant, under the pretext of giving biscuits,committed rape and murder of five-year old girl, and threw her deadbody into the stream. The deceased R could not have provided resistance,much less provocation for the crime. Relying on the data compiled byEthe National Crime Records Bureau which shows that an average of 77acts of rape were committed daily in India in the year 2020, the counselhas sought deterrent penalty for the actions of the appellant.

26. perusal of pages 186 and 187 of this appeal would show thaton the same day as conviction, the trial court imposed death sentenceFvide common order. The appellant has submitted that this is in violationof Section 235(2) of the Code of Criminal Procedure, which mandatesthat the accused must be heard on sentence. In Santa Singh v. State ofPunjab,[4] when the accused was convicted and sentenced to death byone single judgment, 2-judge bench of this court found that there wasGinfraction of Section 235(2) of the Code of Criminal Procedure and setaside the sentence and remanded the matter to the Sessions Court. Theaspect of remand was considered by 3-judge bench in Dagdu andOthers v. State of Maharashtra,[5] wherein it was observed that the

4 (1960) 4 SCC 190H5 (1977) 3 SCC 68

failure on the part of the trial court to hear the accused on sentencingdoes not necessarily entail remand to that court. If the trial court hasfailed to do so and the accused challenges the same before the highercourt, it would be open to the higher court to remedy the breach bygiving hearing to the accused on the question of sentence. More precisely,Goswami J. in Dagdu (supra) observed:

“Whenever an appeal court finds that the mandate of Section235(2) CrPC for hearing on sentence had not been compliedwith, it, at once, becomes the duty of the appeal court to offer tothe accused an adequate opportunity to produce before it whatevermaterials he chooses in whatever reasonable way possible.”

Analysing several decisions of this Court on this issue, Uday U.Lalit, J., in Shatrughna Baban Meshram v. State of Maharashtra,[6]observed that merely on account of infraction of Section 235(2) of theCode of Criminal Procedure, the death sentence ought not to be commutedto life imprisonment. But in light of the principle laid down in Dagdu(supra), we have afforded adequate and sufficient opportunity to theappellant to place all the relevant materials on record before us.

27. In Shatrughna Baban Meshram (supra), 67 judgments ofthe Supreme Court in the previous 40 years were surveyed whereindeath sentence had been imposed by the trial court or the High Court forthe alleged offences under Sections 376 and 302 of the Code, and wherethe age of victims was below 16 years. It was noticed that:

“35.1. Out of these 67 cases, this Court affirmed the award ofdeath sentence to the accused in 15 cases. In three (at Sl. Nos.26-A, 33-A and 41-A) out of said 15 cases, the death sentencewas commuted to life sentence by this Court in review petitions.Out of remaining 12 cases, in two cases (where review petitionswere heard in open court in terms of law laid down in Mohd. Arifv. Supreme Court of India), namely, in cases at Sl. Nos. 51-A and65-A, the death sentence was confirmed by this Court and thereview petitions were dismissed. Thus, as on date, the deathsentence stands confirmed in 12 out of 67 cases where the principaloffences allegedly committed were under Sections 376 and 302IPC and where the victims were aged about 16 years or below.

A35.2. Out of these 67 cases, at least in 51 cases the victims wereaged below 12 years. In 12 out of those 51 cases, the death sentencewas initially awarded. However, in 3 cases (at Sl. Nos. 26-A, 33-A and 41-A) the death sentence was commuted to life sentencein review.”

BIt appears from the above data that low age of the victim has notbeen considered as the only or sufficient factor by this Court for imposinga death sentence. If it were the case, then all, or almost all, 67 caseswould have culminated in imposition of sentence of death on the accused.In the case of Bantu alias Naresh Giri v. State of Madhya Pradesh,[7]where the appellant was accused of raping and murdering six year oldCgirl, this court noted that though his act was heinous and requiredcondemnation, but it was not rarest of the rare, so as to require theelimination of the appellant from the society. There too, there was nothingon record to indicate criminal antecedents of the appellant or to showthat he would be grave danger to the society.D28. The learned trial court has recorded that the death sentencewas awarded on the ground that “the crime was committed in anextremely diabolical manner and that it was cruel, barbaric andrevolting.” It has been rightly pointed out by the counsel for the appellantthat the trial court merely noticed that the appellant was of young ageE(23 / 25 years) belonging to very poor family, but has not consideredthese as mitigating factors. The High Court has noted that there are nomitigating circumstances at all. We find this observation incorrect. Tobegin with, it is clear that the appellant had no criminal antecedents, norwas any evidence presented to prove that the commission of the offencewas pre- planned. As submitted by the counsel for the appellant, there isFno material shown by the State to indicate that the appellant cannot bereformed and is continuing threat to the society. On the contrary, it canbe seen from the Death Sentence Prisoner Nominal Roll dated 17[th] July2017 issued by the Chief Superintendent, Central Prison, Belgaum, thatthe conduct of the appellant in jail has been ‘satisfactory’. We wouldGconsider the appellant’s conduct in prison as expiation for his past deeds,also reflecting his desire to reform and take humane turn. Furthermore,the young age of the appellant at the time of commission of the offence

(23 / 25 years),[8] his weak socio- economic background,[9] absence of anycriminal antecedents,[10] non pre-meditated nature of the crime,[11] and thefact that he has spent nearly 10 years 10 months in prison have weighedwith us as other extenuating factors, which add up against imposition ofdeath penalty which is to be inflicted only in rarest of the rare cases.The respondent State has not shown anything to prove the likelihoodthat the appellant would commit acts of violence as continuing threatto society; per contra, his conduct in the prison has been described assatisfactory. There is no doubt that the appellant has committed anabhorrent crime, and for this we believe that incarceration for life willserve as sufficient punishment and penitence for his actions, in theabsence of any material to believe that if allowed to live he poses agrave and serious threat to the society, and the imprisonment for life inour opinion would also ward off any such threat. We believe that there ishope for reformation, rehabilitation, and thus the option of imprisonmentfor life is certainly not foreclosed and therefore acceptable.29. Thus, we find sufficient mitigating factors to commute thesentence of death imposed by the Sessions Court and confirmed by theHigh Court into imprisonment for life, with the direction that the appellantshall not be entitled to premature release/remission for the offence underSection 302 of the Code until he has undergone actual imprisonment forat least thirty (30) years. While maintaining other sentences, we directthat the sentences shall run concurrently and not consecutively. We sayso as the appellant has been sentenced to imprisonment for life for theoffence under section 376 of the Code, which sentence is also imposedfor the offence under section 302 of the Code.

30. For the aforesaid reasons, we uphold the conviction of theappellant for the offences under Sections 302, 376, 364, 366A and 201 ofthe Code and the sentences awarded for the offences under Sections376, 364, 366A and 201 of the Code. The appeals are, however, partlyallowed by commuting the death sentence to that of life imprisonmentwith the stipulation that the appellant shall not be entitled to prematurerelease/remission before undergoing actual imprisonment of 30 years

8 Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652

9 Mulla v. State of U.P., (2010) 3 SCC 508

10 Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652

11 Mohan v. State of T.N., (1998) 5 SCC 336; Akhtar v. State of UP, (1999) 6 SCC 60

ABC

Afor the offence under Section 302 of the Code and further the sentencesawarded shall run concurrently and not consecutively.[12]

The appeals and all pending applications are disposed of.

BNidhi Jain

Appeals disposed of.

12 In view of the Constitutional Bench decision in Union of India v. V. Sriharan aliasMurugan and Others, (2016) 7 SCC 1, the above direction would not affect theconstitutional power of the President or Governor under Article 72 or 161 of theHConstitution of India.