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CASE NO.: Appeal (crl.)  656 of 2004

PETITIONER: Saibanna

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 21/04/2005

BENCH: K. G. Balakrishnan & B. N. Srikrishna

JUDGMENT: J U D G M E N T

B.N.SRIKRISHNA, J.

       This appeal arises out of a judgment of the High Court of Karnataka  upholding the conviction of the appellant on the charge of Section 302 and  confirming the death penalty imposed on the accused-appellant.

       The appellant-Saibanna was convicted for the murder of his wife- Nagamma, aged about 22 years, and his daughter-Vijayalakshmi, aged about  1= years. The appellant had earlier committed murder of his first wife- Malakawwa for which he was convicted in Sessions Case No. 32/88. While  the appellant was an under trial prisoner, he came into contact with PW 1- Dattu, who was also an under trial prisoner. PW 1-Dattu is the father of the  deceased, Smt. Nagamma. The appellant persuaded PW 1 to give his  daughter- Nagamma in marriage to him. PW 1 also gave an assurance to the  appellant that he would try and get the appellant acquitted in the case against  him.  Later on, PW 1-Dattu was discharged by the court. During the period of  the trial, the appellant was on bail for sometime and he utilised this for getting  married to Nagamma.  He also begot a female child Vijayalakshmi  from her.  He was thereafter convicted in Sessions Case No. 32/88 and was handed  down a sentence of life imprisonment. His appeal against conviction in that  case was dismissed by the High Court of Karnataka.

       While serving the sentence of life imprisonment, the appellant was  released on parole for a period of one month on 19th August, 1994.  On        12th September, 1994, the appellant along with his wife, deceased Nagamma,  their child, Vijayalakshmi, PW 21-Sharanawwa, Mahantappa and others went  in a jeep to the house of PW 1-Dattu at Bhosga Village. They had a festivity  and a good festive meal. Thereafter, the appellant, Smt. Nagamma, child  Vijayalakshmi, PW 1-Dattu, PW 21-Sharanawwa and Mahantappa went to  the newly constructed house of  PW 6-Hanumanthappa (brother of PW 1)  to  sleep there.  During the night, suspecting the fidelity of his second wife,  Nagamma, the appellant assaulted her with a jambia ( a sort of long bladed  knife used for attack or hunting) and inflicted 21 injuries. On being assaulted,  and grievously injured, she ran out of the room and fell outside the room  where PW 1 and  PW 21 were sleeping.  The accused also assaulted the minor  child Vijayalakshmi with the jambia and inflicted 6 injuries on her.  He also  attempted to commit suicide by inflicting injuries on his person.  As a result  of the injuries inflicted, both Nagamma and minor child Vijayalakshmi died,  but the appellant survived to face the trial.

       The first information was lodged by PW 1 at 8:15 a.m. in the morning  of 13th September, 1994 with the jurisdictional police at Afzalpur. The First  Information Report was registered in Crime No. 59/94 for the offence under  Sections 303, 307 and 309 IPC.  The police carried out investigations during  the course of which the bodies were subjected to autopsy, necessary mahazars  were carried out, weapons lying at the spot were seized, clothes of the  deceased and of the accused were also seized.  Statements of  material

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witnesses came to be recorded after which the charge sheet was filed against  the accused-appellant.

       The prosecution examined in all 26 witnesses and got marked Ex. P 1  to P 24 as well as M.Os. 1 to 17.  PW 21-Sharanawwa is the mother-in-law of  the younger brother of the appellant.  Her evidence is most crucial. She stated  in her evidence that a day earlier to the incident when she was in Mandewal   Village, the appellant came there and took her along with his deceased wife- Nagamma, deceased daughter-Vijayalakshmi and PW 5-Shashikala to Bhosga  Village where the parental house of Nagamma is situated.  When all of them  went to the house of PW 1, the appellant requested the parents of the  deceased, i.e., PW 1 and PW 8, to get him released from jail and they  promised that they would try their best to do so.  Thereafter, all of them took  dinner after which PW 21, appellant-Saibanna, deceased Nagamma, deceased  Vijayalakshmi and Mahantappa (grand-son of PW 21) went to the new house  belonging to the brother of PW 1 for sleeping during the night.  The witness  stated that the appellant, his wife-Nagamma and his daughter-Vijayalakshmi  slept in one room while PW 21 and her grand-son, Mahantappa, slept in  another room. As there were lot of mosquitoes troubling them, PW 21 and  Mahantappa came out of the room where they were initially sleeping and  slept outside in the verandah. In the middle of the night, PW 21 heard some  noise and came awake.  She saw  Saibanna-appellant assaulting his wife  Nagamma with a knife on her chest, stomach and other parts. The injured  Nagamma came out of the room shouting followed by the appellant who  continued to assault her outside the room also.  Upon being questioned as to  why he was assaulting Nagamma, the appellant gave no reply, but went inside  the room and also assaulted his daughter Vijayalakshmi and inflicted injuries  on his own person with the same weapon.  All this was noticed, according to  witness PW 21, as there was a chimney lamp at the place which was burning.   The cross-examination of this witness produced no such discrepancies or  contradictions which could have led to disbelieving the witness. The trial  court and the High Court have completely believed this witness, particularly,  when no ill-will or animosity of this witness towards the accused was even  remotely suggested. The fact that she was the close relative of the appellant  (mother-in-law of the younger brother of the appellant) and  that she was aged  about 70 years and would gain nothing by levelling a false allegation on the  appellant also weighed in the courts. The other witnesses examined were  circumstantial witnesses. PWs. 4, 5, 6, 7, 8, 9, 12 and 16 who were post- incident witnesses, who spoke about the presence of PW 21 at that spot and  seeing the injuries on both the deceased and also on the accused.  To that  extent, their evidence is corroborative. Vijayalakshmi and the appellant in the  injured state were taken to a Doctor for medical aid. The Doctor-PW 10 had  noticed the injuries on both of them. PW 10 clearly opined that the injuries  found on the body of the accused were self-inflicted.  The High Court  accepted the evidence of PW 10 and also noticed that the complaints/First  Information Report had been lodged without delay. Even in his statement  under Section 313 of the Criminal Procedure Code, the appellant admitted his  presence at the time of the offence, but denied the other incriminatory  circumstances put to him.  

Upon careful consideration of the entire material evidence, both the  Sessions Court and the High Court concurrently found that the prosecution  had proved beyond reasonable doubt that the accused was guilty of the  offence under Section 302 IPC. Although, originally the accused had been  charged under Section 303 IPC, when the Sessions Court was at the stage of  sentencing, it was brought to its attention that Section 303 IPC had been  struck down as unconstitutional by this Court in Mithu  v.  State of Punjab .  The Sessions Court was of the view that,  on the evidence, the charge of  Section 302 IPC was made out and the appellant could be convicted of  offence under Section 302 IPC as there was no prejudice caused to him by the  change of the charge.         The Sessions Court took the view that the case belonged to the category  of "rarest of rare cases" and that there were no mitigating circumstances and  that the only condign punishment was sentence of death.  In the High Court,   however, there was disagreement between the two learned Judges hearing the

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appeal and the confirmation reference. One learned Judge took the view that  the appropriate punishment would be life imprisonment, while the other took  the view that it was a fit case in which death sentence had to be imposed. The  case was placed before a third learned Judge of the High Court, who took the  view that the case at hand was a "rarest of rare case" involving pre-planned  brutal murders without provocation and, hence, a fit case where the death  sentence imposed by the Sessions Court had to be confirmed.

       The learned counsel for the appellant and the State have taken us  through the record.  We have also heard the learned counsel on both sides and  concur with the finding of the Sessions Court as well as the High Court in  appeal that the appellant is guilty of the offence of murder under Section 302  IPC of his wife-Nagamma and his minor daughter-Vijayalakshmi.  The  question is, what should be the appropriate punishment to be imposed in this  case ?

In the case of Bachan Singh  v.  State of Punjab   the constitutional  validity of the provision for death penalty was upheld. The Constitutional  Bench pointed out that the present legislative policy discernible from Section  235(2) read with Section 354(3) of the Code of Criminal Procedure is that "it  is only when the culpability assumes the proportion of total depravity that  ’special reason’  within the meaning of section 354(3) for imposition of the  death sentence can be said to exist".  Broad illustrative guidelines of such  instances were also indicated therein. It was laid down that the legislative  policy applied in section 354(3) of the Code of Criminal Procedure is that, if a  person convicted of murder, life imprisonment is the rule and death sentence  an exception to be imposed in the "rarest of the rare" cases.

       In Machhi Singh  v. State of Punjab  it was observed that it was only  in rarest of rare cases, when the collective  conscience  of the community is so  shocked that it will expect the holders of the judicial power centre to inflict  death penalty irrespective of their personal opinion as regards desirability or  otherwise of  retaining death penalty.

       A reading of Bachan Singh (supra) and Machhi Singh (supra)  indicates that it would be possible to take the view that the community may  entertain such sentiment in the following illustrative circumstances: 1.      When the murder is committed in an extremely brutal,  grotesque, diabolical, revolting, or dastardly manner so as to  arouse intense and extreme indignation of the community.

2.      When the murder is committed for a motive which evinces  total depravity and meanness; e.g. murder by hired assassin  for money or reward; or cold-blooded murder for gains of a  person vis-‘-vis whom the murdered is in a dominating  position or in a position of trust; or murder is committed in  the course for betrayal of the motherland.

3.      When murder of a member of a Scheduled Caste or minority  community etc. is committed not for personal reasons but in  circumstances which arouse social wrath; or in cases of  ’bride burning’ or ’dowry deaths’ or when murder is  committed in order to remarry for the sake of extracting  dowry once again or to marry another woman on account of  infatuation.

4.      When the crime is enormous in proportion. For instance  when multiple murders, say of all or almost all the members  of a family or a large number of persons of a particular  caste, community, or locality, are committed.

5.      When the victim of murder is an innocent child, or a  helpless woman or old or infirm person or a person vis-‘-vis  whom the murderer is in a dominating position, or a public  figure generally loved and respected by the community.

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In Sevaka Perumal  v.  State of Tamil Nadu  this Court cautioned: "Undue sympathy to impose inadequate  sentence would  do more harm to the justice delivery system to undermine  the public confidence in the efficacy of law and society  could not long endure under serious threats.  If the courts  did not protect the injured, the injured would then resort to  private vengeance. It is, therefore, the duty of every  court  to award proper sentence having regard to the nature of the  offence and the manner in which it was executed or  committed etc."

In Devender Pal Singh  v.  State of NCT of Delhi  the death sentence  was upheld by this Court on application of these broad tests by a majority of  2:1 notwithstanding the dissenting view of Shah, J. holding the accused to be  innocent.

It is not necessary to multiply authorities which are mere instances of  application of the tests evolved by Bachan Singh (supra) read in the light of  Machhi Singh (supra) to different fact situations.  The High Court has  enumerated the following circumstances in this case as indicative that it is  one of the "rarest of rare cases" where imposition of death penalty is  justified.

1.      The accused was already convicted to life imprisonment for  murder of his first wife Malakawwa. He committed the present  murders while he was out on parole. 2.      That the murder was the result of preplanning on his part is  evident from the fact that the murder weapon is a jambia, a  hunting knife used for attack,  not ordinarily available in a house. 3.      Even if the accused had some reason to suspect the fidelity of his  wife, which motivated him to murder her, there could have been  absolutely no reason for killing the defenceless child of 1= years  of age. 4.      The murders were committed when the victims were helpless and  asleep. 5.      No extenuating circumstances in favour of the accused were  either pleaded or proved.

The learned counsel for the appellant, however, contended that  notwithstanding these reasons enumerated by the trial court and the High  Court, the case did not fall within the parameters  for  being an exceptional  one deserving the death penalty. Reliance was placed on the judgment of  Ranjit Singh alias Roda  v.  Union Territory of Chandigarh . It was  contended that it was also a case where the accused had committed the  offence of murder when he was out on parole while serving life imprisonment  for his first conviction.  Notwithstanding such conduct of the accused, this  Court reduced the sentence of death imposed on him to one of rigorous  imprisonment for life. The reason why this was done by this Court is seen in  Para 2 of the judgment. The Court was confronted with the case of two  accused, both with identical motive of vendetta and revenge, and both had  behaved in a cruel manner in inflicting as many as 32 injuries with knives on  the deceased who died immediately as a result of the assault on him.  Strangely, however, one of them had been awarded life imprisonment while  the other was awarded death penalty.  It was in these circumstance that this  Court appears to have been impelled to modify the sentence of life  imprisonment in the case of the appellant before it. Ram Anup Singh  v.  State of Bihar  was pressed into service to  suggest that, instead of death penalty the appellant could be sentenced to  suffer rigorous imprisonment for life with the condition that he shall not be  released before completing an actual term of 20 years including the period  already undergone. Our attention was also drawn to Shri Bhagwan  v.  State  of Rajasthan ,  Dalbir Singh  v.  State of Punjab  and Prakash Dhawal  Khairnar (Patil)  v.  State of Maharashtra  in support of this.

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       It appears to us that the law as such has been crystallized by the  judgment of the Constitution Bench in Bachan Singh (supra) and  reformulated in Machhi Singh’s case (supra). Most of the judgments cited  before us are merely instances of application of that law to facts illustrating  the judicial response of individual Judges.  Even with the same broad  guidelines, as indicated in the aforesaid judgments, as to whether the  circumstances make it a ’rarest of rare case’ is a matter of judicial assessment.   A prisoner sentenced to life imprisonment is bound to serve the remainder of  his life in prison unless the sentence is commuted or remitted and that such  sentence could not be equated with any fixed term .  If that be so, there could  be no imposition of a second life term on the appellant before us as it would  be a meaningless exercise.

       In the teeth of section 427(2) of the Code of Criminal Procedure, 1973  it is doubtful whether a person already undergoing sentence of imprisonment  for life can be visited with another term of imprisonment for life to run  consecutively with the previous one.  

       In Krishna Mochi  v.  State of Bihar  the law on the subject was  restated by this Court in Paragraphs 41 to 44.  After application of the said  law, the Court upon assessing the facts before it unhesitatingly upheld that the  death penalty was the appropriate penalty.

       Thus, taking all the circumstances in consideration, we are of the view  that the High Court was right in coming to the conclusion that the appellant’s  case bristles with special circumstances requisite for imposition of the death  penalty.   

       In the result, we see no reason to take a different view of the matter.   The High Court judgment is not liable to be faulted on any account.  The  appeal has no merit and is hereby dismissed.