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Judgment
K. Sreedhar Rao, J.—One Vyjayanthi (deceased) was working as a ''C'' group employee in the D.E.O. Office, Chickmagalur. The deceased is the native of Bijapur. On 17.6.2007, the deceased came from Bijapur in Bijapur-Mysore bus, got down at Kadur Check-post on 18.06.2007 at 5.20 a.m. The deceased did not reach home. One K.S. Kavltha-P.W.2-daughter of the deceased made enquiries to know the whereabouts of her mother, in vain. On 20.6.2007, she gave a missing complaint to Kadur Police, as per Ex.P-1 registered in Cr. No. 123/2007. In the said complaint, P.W. 2 had given the mobile number of the deceased as 9980389895.
P.W. 1-PSI of Kadur P.S. pursuant to Ex.P.1 made enquiries with the Airtel Authorities to find out whether the SIM number of the deceased is in operation. P.W. 1 comes to know that on 7.7.2007 and 8.7.2007, SIM card of the deceased was operated. The user particular of the said SIM card disclosed IMEI number of the mobile set of the deceased as 7355508011439893. PW1 made further enquiries to find out the position of the mobile MO. 1 through IMEI number. It reveals that MO 1 is operated with SIM No. 9902200131 standing in the name of one Usman-P.W. 9, who further had given the said SIM to his relative P.W. 10 who is incidentally employed as a driver under P.W. 9. The accused in exchange by giving Rs. 200/ - had given MO1 to P.W. 7 and in exchange had taken his mobile set MO2. It further reveals that P.W. 7 had given MO1 to P.W. 10 for use for about two days.
On 15.07.2007, P.W. 1 made enquiries with P.W. 7 and P.W. 10. He also summoned P.W. 7 and verified M.O.1, which was in his possession. At that stage the investigation was taken over by CPI-P.W. 30. On 17.7.2007, who on that day summoned P.W. 7 and seized M.O. 1 from his possession. P.W. 2 was summoned and she identified by M.O. 1 as belonging to her mother. On the same day accused was arrested and produced before the Court on the next day.
The Interrogation of the accused reveals that the accused under an agreement with Rama Rao-P.W. 14 had purchased Tata Sumo bearing No. KA-01/P2966-M.O.14 and was running the same as taxi. The deceased was waiting for the bus at the Kadur Check Post on 18.06.2007 at 5.20 a.m. The deceased was the only passenger to board the taxi of the accused at Kadur check post. The accused during the journey to Chickamgalur stopped the taxi, raped and killed the deceased by strangulation. He also robbed the gold jewellery. The dead body was thrown in the Charmadi Ghaut (valley). The accused with the assistance of one Raffiq-CW 18 pledged the robbed jewellery with Federal Bank. The accused at the time of his arrest was in possession of mobile set-M.O.2 and pledge-receipt of Federal bank -M.O.3 and they were seized under mahazar.
The accused had volunteered to show the place where he thrown the dead body. Only skeletal remains were found. Inquest was conducted. P.W. 2-daughter, P.W. 6 and P.W. 25-relatives of the deceased identified the skeletal body as that of the deceased on the basis of sarry and petticoat marked at M.O. 12 and M.O. 18. The skull-M.O.20 was sent to super-imposition test along with the latest photograph of the deceased. The report of the superimposition test discloses that the skull-M.O.20 pertains to the deceased. At the instance of the accused the gold articles-M.Os. 4 to 8 pledged with the bank have been seized under mahazar dt. 22.6.2007. P.W. 2 identifies the gold articles as belonging to her mother. The investigation further reveals that the accused had made extra judicial confession before his friend one Choudappa-P.W. 11 of causing death of the deceased and robbing her gold jewellary. One Rajeev-P.W. 28-Manager of the Federal Bank identifies the accused as the person who had come along with Rafflq-CW 18 for pledging the gold articles-M.O. 4 to 8.
The accused on the basis of the above material is charged for committing the offence under Sections 376, 302, 392 and 201 IPC. The prosecution relied upon the following circumstances to prove the guide of the accused:
i) One Chowdappa-P.W. 11 is the friend of the accused and he was an inmate of the Tata Sumo at the time when the accused was arrested. The version of P.W. 11 discloses that the accused was found in possession of jewellery at M.O.4 to 8 which had the peculiar features of a jewellery worn by Hindu women. When P.W. 11 enquired, he told that the jewellery belongs to his wife. P.W. 11 suspects and tells the accused that the jewellery cannot be of his wife because the jewelleries are of the design and pattern, which are worn by Hindu women. In that context the accused made extra judicial confession that he raped and caused murder of a woman passenger and robbed her jewellery.
ii) The version of P.W. 7 that it was accused who gave him mobile set-M.O. 1 and in exchange he took mobile set M.O.2. P.W. 7 further states that for two days he had given mobile set - M.O.1 to P.W. 10. During the said period, P.W. 10 had operated the SIM of the deceased.
iii) The report of Airtel at Ex.P.43 shows that the mobile set-M.O. 1 with IMEI No. 7355508011439893 and SIM No. 9980389895 was in the name of the deceased.
iv) At the voluntary instance of the accused the place where he had thrown the dead body was discovered and it was in a skeletal shape.
v) At the time of inquest. P.W. 2, P.W. 6 and P.W. 25 identified the dead body as that of the deceased on the basis of the clothing.
vi) The skull of the dead body was seized and sent to superimposition test along with the latest photograph of the deceased. The report shows that the skull pertains to the deceased.
vii) The evidence of P.W. 14 to the effect that he had sold Tata Sumo-M.O.14 to the accused and that accused was plying the same as taxi.
viii) At the voluntary instance of the accused the gold jewellery M.Os.4 to 8 was found to be pledged with Federal Bank. The accused was found in possession of the pledged receipt at M.O.3 One Rajeev-P.W. 28- Manager of Federal Bank who testify to the effect that on 22.6.2007 accused had come along with Mohammed Rafiq-CW 18 and he pledged M.O.4.to 8 with the bank. P.W. 28 would identify the accused as the person who had come along with CW 18.
In the evidence P.W. 7 testifies to the effect that accused had given the mobile set-M.O. 1 to him and in exchange, the accused took his mobile set-M.O. 2. The evidence of P.W. 7 and P.W. 10 would disclose that P.W. 10 used M.O. 1 for two days i.e., on 07.07.2007 and 08.07.2007 with the SIM card of P.W. 9. P.W. 2 had identified M.O. 1 as belonging to her mother who is the deceased. One M. Jayavelu-P.W. 32 Airtel officer deposes to the effect that M.O. 1 and SIM Number given in Ex.P. 1 belongs to the decease and his report is marked at Ex.P. 43.
P.W. 2-Kavttha. K.S. and P.W. 18-Sreenivasa are the witnesses to the mahazar-Ex.P. 5 under which M.O. 2-mobile set and M.O. 3-pledged receipt recovered from the possession of the accused. The mahazar witnesses have supported the prosecution case. The bank Manager-P.W. 29 testifies to the fact that M.Os. 4 to 8 are pledged by one Rafeeq-CW 18 and that accused had accompanied him. P.W. 2 has identified M.O. 4 to 8 as belonging to her mother.
At the voluntary instance of accused, the skeleton of the deceased are recovered in Charmadi Ghaut. One Abdul Hameed-P.W. 3 is the inquest witness testifies to the recovery of the dead body at the voluntary instance of the accused. Inquest mahazar is marked at Ex.P. 7. P.W. 5-Dr. S.G. Goutham testify to the fact that accused led the police and the mahazar witness and at his voluntary instance shown the place where he had thrown the dead body, which was lying at the depth of the valley. P.W. 14-Rama Rao testify the fact of sale of Tata Sumo-M.O. 14 to the accused and that on 20.6.2007 accused had paid him Rs. 10000/- P.W. 25 is the doctor who conducted the Post Mortem. The P.M. report is marked as Ex.P. 16. He also testifies to the fact that the skull M.O. 20 and the photographs of the deceased was seized and packed in a cardboard box. One K.K. Joseph P.W. 29 conducted superimposition test. He testifies to the effect that the skull sent to him for examination pertains to the lady whose photograph was also sent along with the skull and his report is marked at Ex.P. 24.
P.W. 11 testify to the effect that on coaxed enquiry the accused confessed before him of causing murder of a female passenger and robbing her gold jewellery in the context when the accused''s possession of gold jewellary-M. Os.4 to 8 was under suspicious circumstances.
P.W. 2, P.W. 6 and P.W. 25 identified the skeleton as that of deceased on the basis of sarry-M.O.12 and peticoat-M.O.18. The evidence of P.W. 24-Dr. Nagesh discloses that the skeletal bones are that of a female person aged between 18-45 years.
The Trial Court on the basis of the above evidence convicted the accused for offences under Sections 302, 392 and 201 IPC and sentenced him to death penalty. Hence, the reference is made to this Court for confirmation of death penalty. The accused has also filed an appeal challenging the conviction order.
Sri. G.M. Anand, Counsel appearing for the accused strenuously submitted the following discrepant circumstances to assail the order of conviction:
i) P.W. 1 comes to know the possession of M.O. 1 with PW7 and summoned P.W. 7 on 15.07.2007 to the Police station. Strangely P.W. 1 does affect (sic effect) seizure, but returns the M.O.1 to P.W. 7. The conduct of P.W. 1 is strange and dents his veracity.
ii) P.W. 1 states that he arrested accused on 16.7.2007 around 8 p.m. Strangely P.W. 1 does not affect (sic effect) recovery of M.O. 2 and M.O.3 from the accused. The seizure is effected by P.W. 30 on 17.7.2007. Hence, the recovery evidence becomes doubtful to be believed.
iii) The extra judicial confession made to P.W. 11 becomes doubtful to be believed. Because P.W. 11 does not share the information with anybody and his evidence does not disclose the details of the date, time and place of extra judicial confession.
iv) The discovery of the skeleton at the voluntary instance of the accused is a concocted circumstance.
v) One Rafiq-CW 18 has pledged M.O.4 to 8 according to pledge receipt-M.O.3. M.O.3 stands in the name of CW 18. There is nothing to show that the accused had pledged the jewellary. CW- 18 is not examined.
vi) The evidence of bank Manager-P.W. 29 is artificial. Hundreds of persons visit the bank every day. Identification of the accused by P.W. 29 becomes doubtful when the accused is not the customer of the bank and the person who pledged the jewellery.
In view of the above discrepant circumstances, it was strenuously argued that the order of conviction recorded is bad in law and that accused deserves to be acquitted.
On stern scrutiny of the evidence of the witnesses stated supra, it becomes evident that there is no good ground to reject their testimony of the witnesses who have supported the case of the prosecution in categorical terms which proves the guilt of the accused beyond reasonable doubt. A note of appreciation is required to be recorded for the Intelligent Investigation conducted by PW1 at the earliest in detecting the IMEI number and the operational status of the SIM belonging to the deceased. The said earliest efforts has resulted in brining the accused to justice.
The contention that M.O.3-pledge receipt does not stand in the name of the accused and that CW 18 is not examined cannot be a ground to reject the evidence of recovery of M.Os.4 to 8. It is placed on record that CW 18 has left India and it was difficult to secure his presence. In the said context the prosecution could not examine CW 18. There is no oblique motive for non-examination of CW 18. The bank Manager-P.W. 29 has identified the accused as the person who accompanied CW 18 at the time of pledge. The transaction of pledge requires an elaborate exercise of getting the goldsmith for valuation of jewellery and it takes about a considerable length of time to go through the transaction. When accused was with CW 18 at the time of pledge, there is no surprise for P.W. 29 to identify the accused whom he had an occasion to see him closely and becoming familiar to him. The gold jewellery M.Os.4 to 8 is identified by P.W. 8 as belonging to the deceased.
The evidence of P.W. 2, P.W. 6 and P.W. 25 disclose that they identified the skeleton on the basis of the clothing M.O. 12 and M.O. 18. The evidence of P.W. 3-Mahazar witness and P.W. 5 discloses that the accused voluntarily led the police and at his instance the skeleton was traced at the depth of the valley.
The evidence of P.W. 14 discloses that the accused was plying his Tata Sumo-M.O.14 and that he offered to purchase the same. The accused paid Rs. 10000/- as advance on 20.6.2007.
The superimposition test establishes that the skull pertains to the photographs of the deceased. All the above circumstances would flinchingly establish that the accused caused the murder of the deceased and robbed her Jewellery. However there is no evidence to substantiate the allegation of rape. On the totality of the circumstances, the order of conviction Under Sections 302, 392 and 201 IPC is sound and proper.
With regard to death penalty the provision u/s 354(3) declare that when the offence is punishable with death or imprisonment for life, the judgment should state special reasons for awarding death penalty.
In Dayanidhi Bisoi v. State of Orissa 2003 SCC 1789, the following observations are made in Para 26.
We have taken note of various judgments of this Court, like in the cases of Bachan Singh v. State of Punjab, Surja Ram v. State of Rajasthan, Ravji v. State of Rajasthan and Dhananjay Chatterjee v. State of W.B, which judgments have also been considered by the Courts below. A cumulative reading of these judgments shows that for awarding a punishment of death sentence, there must be some special reasons, the Courts should give relative weight to the aggravating and mitigating factors available on the facts of the case, the case in question should be a rarest of the rare cases. Having noticed the above principles broadly laid down by this Court to be borne in mind by the Courts while awarding death penalty, we find that both the Courts below have considered each and every aspect required to be taken note of by the Courts before choosing to award the death sentence in this case. On reappreciation of that material on record, we find no reason to differ from the said findings of the Courts below. The fact that the murders in question were committed in such a deliberate and diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims'' side, that too having enjoyed the hospitality and kindness of the victims, indicates the cold-blooded and premeditated approach of the Appellant to put to death the victims which included a child of three years'' age just to gain some monetary benefit. In our opinion, the extenuating circumstances put forth by the learned Counsel for the Appellant in regard to the age of the Appellant, his surviving relatives and the possibility of rehabilitation would not, in our opinion, justify the Courts to impose a sentence of life imprisonment on the facts and circumstances of this case. Hence, we have no hesitation in agreeing with the findings of the Courts below and coming to the conclusion that the case in hand is a rarest of the rare cases involving a pre-planned brutal murder without provocation, hence, we find no reason whatsoever to interfere even with the quantum of punishment awarded by the Courts below.
In the scheme of IPC, Section 302 IPC is not the only offence punishable with death sentence. The offence of waging war against the Government u/s 121, giving or fabricating false evidence with an intent to indict innocent person convicted for a capital offence u/s 194, kidnap for ransom u/s 364A and dacoity with murder u/s 396 are all punishable with death penalty or imprisonment for life.
In the majority of the cases that are come for trial before the Sessions Court are offence punishable u/s 302 IPC. Normally, the murder is committed by the accused for the reason of infidelity of the wife, domestic quarrels, land dispute, property disputes etc. The majority of the convictions recorded pertain to the offence of murder committed for the above reasons. In view of Section 354(3), the accused in such cases is sentenced to imprisonment for life. The accused in the said type of cases are all well behaved social beings to the entire society at large, except to the victim of crime. The motive for such murders is not diabolical to the society at large, whereas, when a crime committed for gainful motive, anybody in the society could be indiscriminate target of crime. The offenders who commit murder for trivial reasons cannot be equated with the offenders who commit murders for gainful motives indiscriminately targeting the society at large and it would be unjust to weigh both of them in the same scale. In other words, if both the categories of offenders are punished with imprisonment of life, there would be no rational discrimination in the sentencing policy. The accused whose criminal propensity is limited only to individual or individuals and the accused whose criminal propensity is harmful to the society at large should not be treated alike in the matter of sentence. In a case of robbery with murder, dacoity with murder, waging war against the Government of India punishable u/s 121, giving or fabricating false evidence with an intention to indict innocent persons convicted for a capital offence which is punishable u/s 194, kidnap for ransom u/s 364(A) have to be dealt sternly and ruthlessly otherwise the youth of the country would be lured to take the path of crime for easy life and livelihood. Therefore, in the later category of cases depending upon the manner and magnitude of the acts of accused. The death sentence should be imposed considering it as a rarest of rare case.
In the instant case, the crime is committed in a forest belt and in a ghaut section and there would be a slack traffic. The public transport is not adequate to meet the public demand. The commuters by and large depend upon the private transport for the journey. The drivers of the private transport necessarily are to be licensed, they should have a good moral conduct and they should be lawfully duty bound to the commuters. If the drivers of the private transport turn out to be criminals committing murders and robbery stealthily, there would be no security and safety to the innocent people who depend upon the private transport. Gone are the days to blindly believe the adage "crime never pays". The society is terribly criminalized. It is the utmost duty of the law enforcing authorities to endeavor that the youth of the country should not be attracted to criminal methods for their survival. The accused persons who commit macabre murders for gain should be sternly dealt with. The soft approach of sentencing in a case of this nature would send wrong signals and the deterrent effect of law will lose its impact on the people. The facts and evidence of this case would suggest that it is a rarest of rare case warranting imprisonment of death penalty.
In the circumstances, we find that the reference filed by the prosecution has to be allowed and accordingly, it is allowed. The appeal of the accused is dismissed. The death sentence is confirmed.