IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE RAVI MALIMATH AND THE HON’BE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL REFERRED CASE NO.1 OF 2017 C/W CRIMINAL APPEAL NO.1279 OF 2017 CRIMINAL REFERRED CASE NO.1 OF 2017 BETWEEN IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI, TUMAKURU DISTRICT. … PETITIONER [BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR] AND NANJAPPA SON OF NANJAPPA, 35 YEARS MADDALACHERAVU VILLAGE KALYANADURGA ANANTHAPURA DISTRICT …RESPONDENT [BY SRI M SHASHIDHARA, ADVOCATE] THIS CRIMINAL REFERRED CASE IS REGISTERED AS REQUIRED UNDER SECTION 366(1) CR.P.C. FOR CONFIRMATION OF DEATH SENTENCE AWARDED TO ACCUSED NANJAPPA BY JUDGMENT DATED 30.5.2017 PASSED IN S.C.NO.5017 OF 2016 ON THE FILE OF IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI, FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
CRIMINAL APPEAL NO.1279 OF 2017 BETWEEN NANJAPPA SON OF NANJAPPA AGED ABOUT 35 YEARS RESIDING AT MADDALACHERAVU VILLAGE KALYANADURGA ANANTHAPURA DISTRICT PIN CODE–515761 …APPELLANT (BY SRI M SHASHIDHARA, ADVOCATE) AND STATE OF KARNATAKA BY THIRUMANI P.S. REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING PREMISES BANGALORE-560001 …RESPONDENT [BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR] THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 30.5.2017 PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI, IN S.C.NO.5017/2016 CONVICTING THE APPELLANT –ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 506 OF IPC AND ETC., *** THIS CRIMINAL REFERRED CASE AND THE CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, JOHN MICHAEL CUNHA. J., DELIVERED THE FOLLOWING:
JUDGMENT This criminal referred case and the criminal appeal are arising out of the judgment dated 30.5.2017 passed by the IV Additional District and Sessions Judge at Madhugiri, whereunder the appellant -accused is convicted for the offences punishable under Sections 302 and 506 of IPC and is sentenced to death for the offence under Section 302 of IPC and two years simple imprisonment and a fine of Rs.10,000/- for the offence under Section 506 of IPC.
2. The case of the prosecution as unfolded during trial is that the accused and the deceased were hailing from Andhra Pradesh. There were serious differences between them and they used to quarrel frequently amongst themselves. On the previous day of the incident, the accused had taken the deceased and his three children to a temple at Vallur Village, Pavagada taluk. From there, they came to the house of the sister of the accused (PW-1). On 15.9.2015 at about 11.30 a.m., the wife of the accused (deceased) was combing the hair of her elder daughter (PW-8). At that time, all of a sudden, the accused felled the deceased on the ground and slashed her neck with a knife. By then, the sister of the accused (PW-1), who had gone to the shop, returned home and on seeing her, the accused decapitated the deceased and ran away carrying the knife with him.
2.1 The sister of the accused - PW-1 lodged a written complaint before the Thirumani Police station, Pavagada. Based on the said complaint, Crime No.54 of 2015 came to be registered against the accused under Section 302 of IPC. PW- 22, the CPI of Thirumani Circle, rushed to the spot and conducted inquest over the dead body as per Ex.P-9. The torso and the severed head were sent for postmortem examination to the Government hospital, Pavagada. It was ascertained that the death was due to decapitation. PW-22 conducted spot mahazar and seized bloodstained mud, sample mud, parachute oil bottle, powder box and a comb from the spot. The further investigation was continued by PW-23. On 18.9.2015, the accused was arrested. He showed the spot of occurrence and a panchanama was drawn. On the basis of the voluntary statement of the accused, the knife used for commission of the offence was recovered. The clothes of the accused were also seized. In the course of investigation, PW-23 recorded the statements of the material witnesses and handed over the file to PW-24. On completing the investigation, PW-24 laid the charge-sheet against the accused.
3. The accused engaged a counsel to defend him before trial Court. Later, the services of amicus curiae was provided to represent him. On hearing the learned amicus curiae and the learned public prosecutor, the trial Court framed charges against the accused for the offences under Sections 302 and 506 of IPC. The accused denied the charges. In proof of these charges, the prosecution examined 24 witnesses as PWs-1 to 24 and produced in evidence 35 documents marked as Exs.P-1 to P-35 and 22 material objects at M.Os.-1 to 22. The accused denied the incriminating circumstances and did not enter into any specific defence.
4. Based on the above material, the trial Court convicted the accused for both the offences and awarded death sentence for the offence under Section 302 of IPC and referred the matter for confirmation to this Court under Section 366 of Cr.P.C.
5. We have heard Sri M.Shashidhara, learned counsel for the accused and Sri Vijayakumar Majage, learned Additional State Public Prosecutor for the respondent and scrutinized the records.
5.1. PW-1 is the elder sister of the accused. She has been examined as an eyewitness to the incident. However, she has failed to support the prosecution and has been treated as hostile. Yet, she has admitted the lodging of the complaint –Ex.P-4 and her signature thereon at Ex.P-4(a) and has also admitted the fact that her statement was recorded under Section 164 of Cr.P.C. as per Ex.P-5.
5.2 PW-2 is a neighbour, who has been examined as a circumstantial witness. This witness has also turned hostile to the prosecution case.
5.3 PW-3 is another villager. This witness also has been treated as hostile. However, in the cross-examination, he admitted that on 15.9.2015 at about 11 a.m., he had seen the accused running away from the house of PW-1 carrying a knife.
5.4 PW-4 is a Member of Vallur Gram Panchayath. He is a panch witness to the inquest mahazar. He has supported the prosecution with regard to preparation of the inquest mahazar –Ex.P-9.
5.5 PW-5 is another panch witness to the inquest mahazar. He has been treated as hostile.
5.6 P.W.6 is a panch witness to the inquest mahazar – Ex.P-9 and seizure mahazar –Ex.P-16. He has admitted his participation in the inquest mahazar -Ex.P-9, but failed to support the prosecution case in respect of Ex.P-11 –spot mahazar. During the cross-examination by the public prosecutor, he has admitted that in his presence, the knife was produced by the accused and the same was seized under the mahazar –Ex.P-16. He has identified the said knife –M.O-1. In the cross-examination by the defence, he has reiterated that the said knife –M.O-1 was produced by the accused near “Betta”. Further, he has asserted that the signatures on Ex.P-16 were taken at the spot.
5.7 PW-7 is the elder sister of the deceased. Her evidence is not material for the purpose of this case.
5.8 PW-8 is the daughter of the accused and the deceased. She was aged 9 years at the time of her examination before the Court. In her evidence, she deposed that her father and mother were frequently quarrelling with each other. On the date of incident, her mother was plaiting her hair. By then, her father namely the accused came there and cut-off her mother’s neck with the knife –M.O-1. The trial Court has noted in the deposition sheet that on seeing the accused in the open Court, PW-8 screamed out of fear and hence, the accused was sent out of the Court. She has identified the saree of the deceased and the lungi and shirt worn by the accused. In the cross- examination, it is elicited that they had been to Anjaneyaswamy temple and from there, they came to Vallur. She has further stated that even before the police she had narrated that when her mother was plaiting her hair, the accused cut-off the neck of her mother. She has denied the suggestion that she was giving false evidence before the Court.
5.9 PW-9 is the mother of the deceased. PW-10 is the brother of the deceased and PW-11 is another relative of the deceased. They have supported the case of the prosecution.
5.10 PW-12 is a panch witness to the seizure mahazar – Ex.P-18. He has failed to support the prosecution case.
5.11 PW-13 also has failed to support the prosecution case.
5.12 PW-14 is a panch witness to the spot mahazar – Ex.P.6. He has deposed in conformity with the prosecution case and has identified M.Os-4 to 13.
5.13 PW-15 is another witness to the spot mahazar –Ex.P-
6. He has identified M.Os-4 to 22. In the cross-examination, this witness has stated that on receiving the news, he was the first one to rush to the spot and when he enquired with PW-8, she told him that the accused cut-off the neck of her mother.
5.14 PW-16 is the Vice-President of Grama Panchayath.
He is examined as a panch witness to the spot mahazar –Ex.P-
11 which was prepared when the accused showed the spot of occurrence after his arrest. He has also identified the photographs taken during the preparation of Ex.P-11. He is also a panch witness to the recovery of the knife at the instance of the accused under Ex.P-16. He has identified his signatures on the mahazars and has identified the knife M.O-1. He has reiterated in the cross-examination that his signature was taken at the spot of recovery of the said knife near Akkammagaaru Betta.
5.15 PW-17 is the Head Constable of Thirumani Police Station who collected the articles from the hospital and produced them before the investigating officer.
5.16 PW-18 is the Constable who apprehended the accused and produced him before CPI on 18.9.2015.
5.17 P.W.19 is the Medical Officer who conducted the postmortem examination and issued postmortem report as per Ex.P-22. He has stated that he examined M.O-1 and has certified that decapitation is possible with the knife - M.O-1.
5.18 PW-20 is another Constable who assisted PW-18 in the apprehension of the accused.
5.19 PW-21 is an employee of the Pavagada Court who has been examined to speak about the fact that he translated the statement of PW-1 as per Ex.P-5.
5.20 PW-22 is the CPI of Thirumani Circle who conducted the initial investigation.
5.21 PW-23 is the Circle Inspector who conducted part of the investigation.
5.22 PW-24 laid the charge-sheet against the accused.
6. The main contention urged by the learned counsel for the accused is that the complaint was lodged on 15.9.2015 at 1.30 p.m., whereas the FIR is seen to have reached the Magistrate only on 16.9.2015 at 10.45 a.m. This delay has not been explained by the prosecution. The police officer who registered the FIR is not examined. The Constable who submitted the FIR to the Magistrate also has not been examined, giving rise to a doubt that deliberate attempt has been made to falsely implicate the accused in the case. Secondly, it is contended that the prosecution has mainly relied on the testimony of PW-8, the daughter of the deceased and the accused. She was hardly 7 years old as on the date of the alleged incident. She was not competent to give her evidence before a Court of Law. In support of this argument, the learned counsel has referred to the proceedings recorded by the learned Magistrate in Crime No.54 of 2015 and would submit that the order-sheet therein would indicate that a request was made by the investigating officer to record the statement of PW-8 under Section 164 of Cr.P.C. At that time, on questioning PW-8, the learned Magistrate found the witness incompetent to give her statement. The learned Magistrate has specifically noted in the order-sheet that on physical appearance, PW-8 appeared to be about 4 years. The aunt of PW-8 who accompanied her also disclosed her age as 4 years. This remark goes to show that PW-8 was incompetent to give evidence before the Court. It is the submission of the learned counsel that the above notings having been made by the learned Magistrate in a judicial proceedings therefore, this Court is entitled to take judicial notice of the same. If the learned Magistrate had found PW-8 incompetent to give her statement under Section 164 of Cr.P.C., the learned Sessions Judge could not have found the witness as competent to give statement as recorded in the deposition. Even otherwise, it is the submission of the learned counsel that the evidence of PW-8 is not trustworthy. It is at variance with the medical evidence. The doctor who conducted postmortem examination has stated that the deceased had sustained injuries on her hands, but the evidence of PW-8 is silent on this aspect, which once again go to show that she was not an eyewitness to the incident as sought to be made out by the prosecution.
Therefore, her evidence should not have been relied on by the Trial Court in recording the conviction against the accused.
7. We have considered the above submissions and have carefully scrutinized the evidence of PW-8 as well as the order- sheet maintained by the learned Magistrate in Crime No.54 of 2015, along with the other material contained in the lower court records. Needless to say that PW-8 is the star witness of the prosecution and the entire case of the prosecution is rested on her testimony.
8. Insofar as the order-sheet maintained by the learned Magistrate is concerned, we do not find anything in the said order-sheet to indicate that PW-8 was not in a position to understand the questions put to her or that she was not competent to give her statement as on the date of her presentation before the learned Magistrate to record her statement under Section 164 of Cr.P.C. A reading of the order- sheet indicates that on questioning PW-8, the learned Magistrate found that she was tutored by her aunt. The learned Magistrate has specifically noted in the order-sheet that even the age of the witness was furnished by her aunt and under that circumstance, the learned Magistrate found it proper not to record the statement of PW-8 as he was of the clear opinion that PW-8 was under the influence of her aunt. The accused therefore cannot take advantage of this noting to contend that PW-8 was not in a position to give evidence as on the date of her examination before the Sessions Court. It needs to be noted that she was taken before the Magistrate for recording her statement under Section 164 of Cr.P.C. one and half years prior to the recording of her evidence before the Sessions Court. If PW-8 was not in a position to give her statement when questioned by the learned Magistrate, it cannot be assumed that she was not in a position to understand the nature of her evidence or that she was not in a position to comprehend the questions put to her during trial.
8.1 The deposition of PW-8 shows that preliminary questions were put to PW-8 to ascertain her capacity to understand and her duty of speaking the truth. It is clear from this deposition that having satisfied about her competency, the learned Sessions Judge has proceeded to record her evidence.
Her evidence is recorded in Kannada. It is relevant to note that even the demeanor of the witness has been noted in the deposition sheet. The learned Sessions Judge has specifically noted that when she described the manner in which the accused committed the murder of her mother by cutting off her neck, she all of a sudden could not contain her emotions and started screaming looking at the accused, so much so the Presiding Officer had to send the accused out of the Court hall, which indicates that she could not only understand the implications and consequences of her evidence before the Court, but also was moved with emotions. Her conduct demonstrates as to what extent she was traumatised by the act of the accused. She has narrated the incident in a simple manner, without any embellishment. In our opinion, no way, her evidence could be disbelieved or viewed with any suspicion. The very fact that she has stated that when her mother was plaiting her hair, the accused dragged her mother and then cut-off her head indicates that she was very much present at the spot of occurrence. She has identified the knife used for the commission of the offence and other articles seized from the spot of occurrence including the comb with which the deceased was combing her hair at the time of the incident. All these circumstances lend intrinsic veracity to her testimony. Furthermore, her evidence gets corroboration from the evidence of PW-15, one of the villager, who rushed to the spot on hearing the news. The statement made by PW-15 that on inquiry, PW-8 implicated the accused at the earliest point of time, assumes relevance under Section 6 of the Indian Evidence Act, 1872. Her testimony therefore inspires full confidence to hold that she was an eyewitness to the incident.
9. It is interesting to note that the learned counsel has put forth an argument that by not recording her statement under Section 164 of Cr.P.C., an opportunity has been denied to the accused to cross-examine the witness with reference to her previous statement. This argument has absolutely no legs to stand. PW-8 has unequivocally stated before the Court, that during investigation her statement under Section 161 of Cr.P.C. was recorded by the investigating officer. If for any reason, the testimony of PW - 8 was contrary or inconsistent to her previous statement, it was open for the accused to confront the said statement under Section 161 Cr.P.C. so as to discredit her evidence. That having not been done, the accused cannot now put forth a plea that if the statement under Section 164 of Cr.P.C. was available, he would have been in a position to discredit her evidence. This argument presupposes that the evidence of PW-8 is in conformity with her previous statement, which again lends credibility to her statement. No contradictions or inconsistencies are brought out in her evidence to disbelieve her presence at the spot of occurrence or the narration of facts spoken by her implicating the accused in the commission of offence. Therefore, we have no hesitation whatsoever to accept the evidence of PW-8 as fully reliable and trustworthy. In our assessment, the testimony of PW-8 could be made a basis for recording a conviction against the accused.
10. Yet, we find from the records that the prosecution has produced suitable corroboration to the testimony of PW-8 by way of recovery evidence and the medical opinion. The prosecution has satisfactorily proved that the weapon used for the commission of the offence was recovered at the instance of the accused. The panch witnesses who participated in the recovery have not only spoken about the voluntary statement made by the accused, but have also identified the weapon. The medical opinion produced by the prosecution corresponds to the recovery evidence relied on by the prosecution. Thus, there is acceptable corroboration to the testimony of PW-8. The evidence of PW.8 coupled with the evidence of PW.15 and the recovery of the knife in the light of the medical opinion of PW.19, in our opinion, is sufficient to establish the guilt of the accused for the offences under sections 302 and 506 of IPC beyond all reasonable doubt. The trial Court has considered all these facts and circumstances of the case and on proper appreciation of the evidence has come to a right conclusion. We do not find any ground to interfere with the findings recorded by the trial Court. Hence, we confirm the conviction of the accused for the offences under Sections 302 and 506 of IPC.
11. We have heard the learned counsel for the accused and the learned Additional State Public Prosecutor on the question of confirmation of death sentence.
12. On going through the impugned judgment, we find that the trial Court has noted that the accused has committed the murder in a casual and grotesque manner. He severed the head of his wife in front of his minor daughter, which according to the trial Court demonstrates the gravity of offence. Further, the trial court has noted that the accused even terrorized his children to such an extent that his daughter was not in a position to face him in the open Court. The trial Court has also taken note of the fact that even the family members of the accused did not come forward to offer bail to him, which according to the Trial Court indicates that he had no bondage with his family members. From all these circumstances, the trial court was of the view that the case falls under the category of rarest of rare cases.
13. The learned Additional State Public Prosecutor also would submit that since the murder was committed in front of his own daughter, the case falls within the category of rarest of rare cases, and his conduct before and after the commission of offences does not entitle him for any leniency.
14. On going through the entire material on record, we agree with the submission of the learned Additional State Public Prosecutor that the offence has been committed in a highly grotesque manner. It also stands proved that in the presence of his daughter, the accused has resorted to such a heinous crime in a highly brutal manner which has left her terrified and shaken. The manner in which the accused attacked the deceased and cut off her neck indicates that the accused has no respect for human life and therefore, does not deserve any sympathy.
15. In MACHHI SINGH & OTHERS vs. STATE OF PUNJAB, 1983 SCC (Cri) 681, the Hon’ble Supreme Court, while applying the guidelines laid down in BACHAN SINGH vs. STATE OF PUNJAB (1980)2 SCC 684 has laid down the parameters to decide individual cases with reference to the motive, manner of commission of the crime, anti-social or abhorrent nature of the crime to the society. In the instant case, on meticulous consideration of the overall facts and circumstances of the case, we are of the considered opinion that none of the parameters laid down in the above decisions get attracted to the facts of this case. Merely because the offence has been committed in a grotesque manner does not make it a rarest of rare cases. Though the conduct of the accused evinces a kind of depravity and meanness, yet the offence committed by him cannot be treated as so abhorrent warranting death penalty. As observed in Bachan Singh’s case, “In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree in culpability. And it is only when the culpability assumes the proportion of extreme depravity that ‘special reasons’ can legitimately be said to exist.”
(underlining supplied) 16. We do not find any “special reasons” in the instant case calling for extreme penalty of capital punishment. The material on record does not lead to the inference that the accused has turned out to be a menace to the society and that he has forfeited his right to live. But, at the same time, having regard to the gravity of the crime and the manner in which the accused has committed the said offence instilling terror and fear in the mind of his innocent children, we are of the view that it would be a travesty of justice to treat the same as run of the mill case and let off the accused with life imprisonment with the usual benefits of set-off and remissions like any other ordinary crime. What distinguishes this case from any other murder of the same or similar kind is that the accused has traumatized and terrorized his children by decapitating the head of their mother in their presence. The conduct of the accused after the commission of the offence indicates that he had scant remorse for his act and did not display his fatherly concern towards the children. The circumstances brought out in the evidence indicate that PW.8 – his minor daughter who was of impressionable age at the time the incident was virtually gripped with fear on seeing her father in the dock. The Trial Court has also noticed this fact and has made a specific reference in this regard in the deposition sheet. The Trial Court has also observed in the impugned judgment that even the other family members of the accused did not come forward to bail him out which reinforces the fact that the accused has turned out to be a real terror to his children and his family members. Under the said circumstances, in our opinion, it is the children of the deceased and the family members of the accused who deserve safety and protection from the hands of the accused. As held by the Hon’ble Supreme Court in STATE vs. NALINI & Others (1999) 5 SCC 253, “… the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
17. Similar view is expressed by the Hon’ble Supreme Court in a recent decision in RAJ BALA VS. STATE OF HARYANA & OTHERS (2016) 1 SCC 463, wherein the Hon’ble Supreme Court has observed that, “One cannot remain a total alien to the demand of the socio-cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the ‘finest part of fortitude’ is destroyed.”
18. In the instant case, we are also of the view that more than the right and liberty of the accused, the need of the children of the accused to live in peace and safety requires to be taken into account while imposing appropriate punishment on the accused commensurate with the gravity of the crime committed by him. It is now well settled that the High Courts which derive the power under the Penal Code to confirm the capital punishment are also empowered to prescribe alternate punishment or to alter the death punishment with one either for entirety of the convict’s life or for any specified period of more than 14 years, say 20, 30 or so on depending upon the gravity of the crime committed and exercise of judicial conscience befitting such offence found proved to have been committed, as held in UNION OF INDIA vs. V.SRIHARAN @ MURUGAN & Others (2016) 7 SCC 1. Hence, having regard to the facts and circumstances discussed above and especially with a view to protect the children of the accused, we are of the view that the circumstances of this case warrant imposition of the sentence of rigorous imprisonment for a term of 25 years without any remission for the offence under section 302 of IPC.
19. Accordingly, we proceed to pass the following order:- Criminal Appeal No.1279 of 2017 is allowed in part. The order of conviction passed against the appellant/accused – Nanjappa under Sections 302 and 506 of IPC is confirmed. The sentence imposed on the appellant/accused is modified. The accused is sentenced to rigorous imprisonment for 25 years without remission for the offence punishable under Section 302 of IPC.
Consequently, the death sentence awarded by the Trial Court is set aside. The sentence awarded by the trial Court for the offence under Section 506 of IPC is maintained.
Both the sentences shall run concurrently.
In view of the above order, Crl.R.C.No.1 of 2017 is rejected.
The accused is entitled to the benefit of set-off under Section 428 of Cr.P.C. only for the period of custody undergone by him as an under-trial prisoner.
Registry is directed to communicate the operative portion of the order to the jail authorities, Hindalga Jail, Belagavi, where the accused is lodged, for necessary action.
Sd/- Sd/-
JUDGE JUDGE bkv