# 2 S.C.R.-367 B.A. UMESH v. REGR.GEN.HIGH COURT OF KARNATAKA

- **Citation:** [2011] 2 S.C.R. 367
- **Court:** Supreme Court of India
- **Decided:** 2011-02-01
- **Case number:** Criminal Appeal Nos.285-286 of 2011
- **Bench:** Altamas Kabir, A.K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-367-b-a-umesh-v-regr-gen-high-court-of-karnataka-27414
- **Pages:** 43

## Headnote

PENAL CODE, 1860 :
A
B
ss. 302, 376 and 392 t- Conviction and sentence of death c
awarded by trial court finding the chain of circumstantial
evidence complete - Conviction upheld and death sentence
'confirmed by High Court - Held :On the basis of oral
evidence, the post mortem report, the evidence of the doctor
who conducted the autopsy, the medical examination of, 0
injuries on the person of the accused, his extra judi<ifal
confession made to the doctor who examined him, the
forensic report the report of the Finger-Print Expert and the
recoveries made from the house in occupation of the
accused, the courts below rightly held that the accused, and E
none else, committed the offences -All the witnesses who
claimed to be present at or near the place of occurrence
remained unshaken in cross-examination, thereby
completing the chain of circumstantial evidence in a manner
that clearly indicates that no one other than the accused F
committed .the offences with which he was charged -His
conviction, therefore, upheld -Keeping in view the
antecedents of the accused, the stolen/robbed articles
recovered from the rented accommodation in his occupation,
his remorseless attitude indicated by the fact that two days
after the incident in question he was apprehended by public
G
for attempting similar offences, the manner in which the
offences of rape and murder were committed by him, it has
rightly been held by the courts below that the accused is a
menace to society and incapable of rehabilitation -The
367
H
J
368
SUPREME COURT REPORTS
[2011) 2 S.C.R.
A sentence of death is, therefore, confirmed -Sentence/
sentencing -Evidence -Circumstantial Evidence -Test
Identification Parade -Extra-judicial confession -Identification _
of Prisoners Act, 1920 -s.5 -Karnataka Police Manual.
8
The appellant-accused was convicted by the trial
court of offences punishable u/ss 376, 302 and 392 IPC
and was sentenced to death. The High Court upheld the
conviction and confirmed the death sentence.
In the instant appeals, it was contended for the
C appellant-accused that his conviction was based erltirely
on circumstantial evidence which itself was based on
inference which was of no evidentiary value; that the
prosecution had almost entirely relied on the evidence of
P.W.2, the son of the deceased, who was a minor of 7
D years at the time of the incident, P;W.s 10 and 11, being
;: ;. :·
chance witnes'ses, who claimed to have seen the
appellant coming out of the house of the deceased, and
P.W. 17, the landlady of the appellant who identified him
in the Test Identification Parade. It was submitted that a
E photograph of the appellant had been published -in the
newspapers throwing doubt on such identification. It was
further submitted that even if conviction of the appellant
u/ss 302, 392 and 376 l.P.C. was to be accepted, the case
did not fall within the category of "rarest of rare cases".
F It was submitted that the judges of the Division Bench of
the High Court differed on the question of sentence and
the matter was referred to another Judge who confirmed
the death penalty imposed by the trial court.
G
H
Dismissing the appeals, the Court
HELD: 1.1 Since the conviction of the appellant is
based on circumstantial evidence leading to the awarding
of the death sentence to him along with his conviction
u/ss 376 and 392 l.P.C., the Court has looked into the
'
B.A. UMESH v. REGR.GEN.HIGH COURT OF
369
KARNATAKA
evidence adduced by the prosecution, with care and A
caution. [para 41] (401-F]
1.2 That, one ,'J', the mother of P.W.2, was murdered
. inside her house on 28.2.1998 between 4.30 and 5.00 p.m.
is not disputed, nor is it disputed that P,W.2 the son of 8
the deceased, came back to the house after playing with
his friends at about 5.00 p.m. and discovered the body
- of his mother lying on the ground stained with blood, with
both her hands tied with a sari at one end, while the other
end of the sai;.i wa~ tied to a window. It has also been C
established thcit P.W. 2,

## Text

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[2011) 2 S.C.R.-367
B.A. UMESH
v.
REGR.GEN.HIGH COURT OF KARNATAKA
(Criminal Appeal Nos.285-286 of 2011)
FEBRUARY 1, 2011
[ALTAMAS KABIR AND A.K. PATNAIK, JJ.)
PENAL CODE, 1860 :
A
B
ss. 302, 376 and 392 t- Conviction and sentence of death c
awarded by trial court finding the chain of circumstantial
evidence complete - Conviction upheld and death sentence
'confirmed by High Court - Held :On the basis of oral
evidence, the post mortem report, the evidence of the doctor
who conducted the autopsy, the medical examination of, 0
injuries on the person of the accused, his extra judi<ifal
confession made to the doctor who examined him, the
forensic report the report of the Finger-Print Expert and the
recoveries made from the house in occupation of the
accused, the courts below rightly held that the accused, and E
none else, committed the offences -All the witnesses who
claimed to be present at or near the place of occurrence
remained unshaken in cross-examination, thereby
completing the chain of circumstantial evidence in a manner
that clearly indicates that no one other than the accused F
committed .the offences with which he was charged -His
conviction, therefore, upheld -Keeping in view the
antecedents of the accused, the stolen/robbed articles
recovered from the rented accommodation in his occupation,
his remorseless attitude indicated by the fact that two days
after the incident in question he was apprehended by public
G
for attempting similar offences, the manner in which the
offences of rape and murder were committed by him, it has
rightly been held by the courts below that the accused is a
menace to society and incapable of rehabilitation -The
367
H
J
368
SUPREME COURT REPORTS
[2011) 2 S.C.R.
A sentence of death is, therefore, confirmed -Sentence/
sentencing -Evidence -Circumstantial Evidence -Test
Identification Parade -Extra-judicial confession -Identification _
of Prisoners Act, 1920 -s.5 -Karnataka Police Manual.
8
The appellant-accused was convicted by the trial
court of offences punishable u/ss 376, 302 and 392 IPC
and was sentenced to death. The High Court upheld the
conviction and confirmed the death sentence.
In the instant appeals, it was contended for the
C appellant-accused that his conviction was based erltirely
on circumstantial evidence which itself was based on
inference which was of no evidentiary value; that the
prosecution had almost entirely relied on the evidence of
P.W.2, the son of the deceased, who was a minor of 7
D years at the time of the incident, P;W.s 10 and 11, being
;: ;. :·
chance witnes'ses, who claimed to have seen the
appellant coming out of the house of the deceased, and
P.W. 17, the landlady of the appellant who identified him
in the Test Identification Parade. It was submitted that a
E photograph of the appellant had been published -in the
newspapers throwing doubt on such identification. It was
further submitted that even if conviction of the appellant
u/ss 302, 392 and 376 l.P.C. was to be accepted, the case
did not fall within the category of "rarest of rare cases".
F It was submitted that the judges of the Division Bench of
the High Court differed on the question of sentence and
the matter was referred to another Judge who confirmed
the death penalty imposed by the trial court.
G
H
Dismissing the appeals, the Court
HELD: 1.1 Since the conviction of the appellant is
based on circumstantial evidence leading to the awarding
of the death sentence to him along with his conviction
u/ss 376 and 392 l.P.C., the Court has looked into the
'
B.A. UMESH v. REGR.GEN.HIGH COURT OF
369
KARNATAKA
evidence adduced by the prosecution, with care and A
caution. [para 41] (401-F]
1.2 That, one ,'J', the mother of P.W.2, was murdered
. inside her house on 28.2.1998 between 4.30 and 5.00 p.m.
is not disputed, nor is it disputed that P,W.2 the son of 8
the deceased, came back to the house after playing with
his friends at about 5.00 p.m. and discovered the body
- of his mother lying on the ground stained with blood, with
both her hands tied with a sari at one end, while the other
end of the sai;.i wa~ tied to a window. It has also been C
established thcit P.W. 2, thereafter went to C.W.7, a
neighbour, and told her what he had' seen. On i"eceiving
the said information, C.W. 7 called C.W.6 and P.W. 8 and
together they went to J's house with P.W.2 and through
~-
"
the window they saw 'J' lying on the ground. P.W~8 then
'
called P.W.7, a Police Constable, living in the same D
locality, who telephoned P.W.9, the Inspecting Offi~_er,
who then came to the place of occurrence with Police
Constable P.W.6. It also transpires from the evidence that
on receiving information, P.W.14, a PoliQ. Co.nstaf>le ~"
working in the· Dogs Squad, P.W.16; a Police· E
Photographer and P.W.13, a Police Inspector and FingerPrints Expert, arrived at the scene of occurrence.
Thereafter, P.W.29, the Investigating Officer of the case,
along with P.W.9, who was a Mazahar witness, went
inside the room and found the deceased lying naked on \\ F
the ground with abrasions on her body and both her
hands tied in the manner indicated by PW-2. In addition,
It was found, as was also indicated in the Inquest Report,
that the tongue of the deceased protruded a little. There.
were scratch marks on her breasts and blood oozing out G
of her genitals. There were also strangulation marks on
her neck. [para 41] (401-F-H; 402-A-E]
1.3 That the death of the victim was homicidal has
· been amply proved by the Post-mortem report of the
H
370
SUPREME COURT REPORTS
[2011) 2 S.C.R.
A Doctor (P.W.26), who was of the opinion that the death
was due to asphyxia as a result of smothering and
evidence of violent sexual intercourse and attempted
strangulation. In addition, the appellant was also
examined by P.W.26 for evidence of sexual intercourse
B and during such examination the appellant confessed
that he had pushed the victim and removed her clothes,
tied her hands and committed theft. Thus, the victim's
death has been established to be homicidal in nature.
[paras 41-42] [402-F-H]
c
1.4 The evidence of P.W.2, the minor son of the
deceased, is of great importance, notwithstanding the fact
that he was about 7 years old when the incident had
occurred. He has very clearly depicted the manner in
which after returning from playing with his friends he
D found the appellant, who described himself as
'Venkatesh' uncle, coming out of the room in which he
and his mother lived. He has also narrated, without any
ambiguity, the statement made by the appellant that his
mother being possessed by the devil, the appellant had
E to tie her hands and was going to call a doctor. He also
disclosed that while leaving the house, the accused was
carrying several things in a bag, including a VCR that was
in the house. He also identified the accused in a T.I.
Parade conducted at the Central Jail by the Tehsildar
F (P.W.24) and also in the court room while deposing. In
addition, P.W.2 also identified a VCR, gold case watch,
clock and anklets, saris and other things as belonging to
his mother. His evidence has remained unshaken on
cross-examination. [para 42] [403-B-E]
G
1.5 The evidence of P.W.2 was corroborated by the
evidence of P.W.10, who lived in a rented house almost
opposite to the rented house of the deceased. He has
stated that the deceased being a tenant in the opposite
house was familiar to him and that the distance
H separating the two premises would be about 30 feet.
B.A. UMESH v. REGR.GEN.HIGH COURT OF
371
KARNATAKA
Although, described as a chance witness by the defence, A
he has explained his presence in his house at 2.00 p.m.
on 28-2-1998, having completed his work in the first shift.
His explanation is quite plausible and he has stated
without hesitation that he had seen the accused coming
out of the house of the deceased with a bag and B
proceeding towards the pipe line. He a1~0 identified the
accused in court as being the person whom he had seen
coming out of the house of the deceased on the day of
" the incident at about 4.30 p.m. The said witness also
identified the accused in the T.I. Parade conducted by the c
Tehsildar (P.W.24). [para 42) [403-E-H; 404-A]
1.6 The evidence of P.W.11 further corroborated the
evidence of P.W.2 regarding the presence of the accused
in the house of the deceased at the time of the incident.
He too lives in a house opposite to the house of the D
deceased at a distance of about 50 feet. He too has been
described as a chance witness by the defence, but he
has explained his presence in the premises at the relevant
time. In his evidence he has stated that at about 4.30-5.00
p.m. he saw a person coming out of the house· of the E
deceased and proceeding towards the pipe line. He too
identified the appellant in Court as being the person who
had come out of the house of the deceased on the said
date. He was also one of the witnesses, who identified
the appellant in the T.I. Paracl@ conducted by P.W.24.
F
[para 43) [404-A-D]
1.7 The evidence of P.Ws 2, 10 and 11 as to the
presence of the appellant at the place of occurrence on
28.2.1998 at the relevant time has been duly accepted by G
the trial court as well as the High Court and nothing has
been shown on behalf of the appellant to disbelieve the
same. In fact, the identification of the appellant by P.Ws
2, 10 and 11 is further strengthened by his identification
by P.W.17, who has also deposed regarding the seizure H
372
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A of various items from the rented premises of the
appellant, such as gold ornaments, suitcases, a television -
set and clothes. [paras 43-44) [404-D-F]
1.8 P.W.22, the elder sister of the deceased, also
8
identified some of the articles seized by the Investigating
Officer from the house of the appellant, as belonging to
her deceased sister. Such items included a VCR, a pair
of gold beads, 4 gold bangles, one pair of silver anklets
.. · and 15 to 20 silk and ordinary saris. [para 45) [404-E-F]
'-'
C
~.9 P.W.4, who had been approached by the appellant
for a rented premises and who introduced the appellant
to P.W.5, identified the accused to be the same person
who had approached him for a rented accommodation
stating that his name was Venkatesh. He was also one
D of the witnesses to the seizure of various items by the
Investigating Officer. He has stated that after arresting the
appellant, the Peenya Police had brought him to the
rented accommodation in which he was staying and on
the instructions of the police inspector, the appellant
E opened the door of the house with his own key, and,
thereafter, upon entering the house, the police seized
various items such as suitcases, saris, panties, VCR, TV
and antenna, pants, shirts, ornaments and cash. Much
the same statements were made by P.W.5, the owner of
F the horse which had beenorented out to the appellant. He
corroborated the evidence of P.W.4 that the said witness
had brought the appellant to him for the purpose of
renting a house. P.W.5 was also a witness to the seizure.
[para 46) [404-H; 405-A-D]
G
1.10 P.W.8, who was the landlady of the deceased,
corroborated the prosecution story that P.W.2, on seeing
the body of his mother lying on the ground in the room
rushed to C.W.8, who has not, however, been examined
by the prosecution, who rushed to P.W.8 and told her of
H the incident. All of them went to the house of the
B.J,\. UMESH v. REGR.GEN.HIGH COURT OF
373
.KARNATAKA
decea$ed and saw her lying on the ground on her back
A
through the window and thereafter they went to the
house of P.W.7 and informed him about the incident.
[para 47) [405-D-E]
1.11 All the witnesses who claimed to be present at
8
or near the place of occurrence remained unshaken in
cross-examination, thereby completing the chain of
circumstantial evidence in a manner that clearly indicates
that no one other than the appellant committed the
offences with which he was charged. The trial court has
also relied μpon the extra-judicial confession made by the
appellant to the doctor, P.W.26, who examined him as to
c --
his sexual capacity, to the effect that,, he had pushed
down the victim, removed her clothes, tied her hands and
committed theft in the house. [para 48) [405-F-H]
1.12 The prosecution case is further strengthene~. by
the Forensic Report and that of the Finge11i-Print Expert
to establish that the finger prints which; had been lifteft
D
by P.W.13 from the handle of the steel almirah in the room,'l:--
matched the finger print of the appella.nt which clearly
E
established his presence inside the house of the
deceased. In a way, it is the said evidence which
scientifically establishes beyond doubt that the appellant
was present in the room in which the deceased was
found after her death and was identified as such not only
F
by P.W.2, who actu&!!~1 saw him in the house immediately
- after 'J' was murdered, but also by P.'("s 10 and 11, who
saw him co~ing out of the house at the relevant point of
time with the bag in his hand. The finger print of the
appellant found on the handle of the almirah in the room
G
of the deceased proves his presence in the house of the
deceased and that he and. no other caused J's death.
[para 49] [406-A-D]
2.1 Apart from causing the death of the victim, the
_ evidence also points to the commission of rape of the
H
374
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A deceased by the appellant. That the deceased was lying
naked with blood oozing out of her genitals and both her
hands tied by a sari at one end clearly indicates violent
sexual intercourse with the deceased which has been
established and confirmed by the medical evidence i.e.
B the post-mortem report and the evidence of the doctor
PW-26. Besides, the examination of the accused by
P.W.26, the doctor, who conducted the post-mortem
examination, discloses laceration on the inner aspect of
the upper lip and inner abrasions in both lips, scratch
c abrasions over the right side of the face. Abrasions over
the front of. right shoulder and over the right side at the
back of the neck of the appellant indicated that the same
could have been caused due to resistance and
strengthens the case of the prosecution of forced sexual
0 intercourse with the victim against her wishes. [para 50]
[406-E-H; 407-A-B]
2.2 Even after committing the offences of rape and
murder, the appellant robbed various articles, including
jewellery and a VCR set from the house of the deceased.
E [paras 51] [407-C]
3.1 As regards the questions raised to the
identification of the appellant by P.Ws 2, 10, 11 and 17 on
the ground that the picture of the appellant had been
F published in the newspapers after the incident, it is
significant to note that P.Ws 10 and 11 being the
immediate neighbours of the appellant, had occasion to
see him earlier. As far as P.W.17 is concerned, she was
the appellant's landlady at the relevant point of time. [para
G 52] [407-E-F]
Musheer Khan alias Badshah Khan & Anr. Vs. State of
Madhya Pradesh- 2010 (2 ) SCR 119 = (2010) 2 SCC 748held inapplicable
H
3.2 On the question of recovery of M.Os.2 to 23 from
I
B.A. UMESH v. REGR.GEN.HIGH COURT OF
375
KARNATAKA
the rented premises of the appellant, though an attempt
A
has been made to discredit the role of P.W.5 as a panch
witness, there is no reason to disbelieve the same since
such recovery was also witnessed by P.W.22, the sister .
of the deceased, who also identified the recovered
articles. [para 53] [407-G-H]
B
c -
3.3 As to the procedure adopted by the Investigating
Officer for obtaining the finger-print of the appellant
through P.W. 25 who was serving as Constable in
Peenya Police Station at the relevant time, the same has
been considered and dealt with by the High Court in its
impugned judgment. It has been stated that such a
procedure was available under the Karnataka Police
Manual read with s. 5 of the Identification of Prisoners Act,
1920, and that it had been duly proved that the finger-print
recovered from the handle· of the almirah in the room of D
t.he deceased matched the right finger print of the
appellant. [para 54] [408-A-C]
4. Therefore, conviction of the appellant u/ss 376, 392
and 302 IPC is confirmed. [para 55] [408-C-D]
E
5. On the question of sentence, the Court is satisfied
that the extreme depravity with which the offences were
committ~d and the merciless manner in which death was
inflicted on the victim, brings it within the category of
F
- rarest of rare cases which merits the death penalty, as
awarded by the trial co.urt and confirmed by the High
Court None of the mitigating factors as were indicated
by this Court in Bachan Sinqh's* case or in Machhi
Sinqh's** case are present in the facts of the instant case.
The appellant even made up a story as to his presence
G
in the house on seeing P.W.2, who had come there in the
meantime. Besides, it is clear from the reco'V'eries made
from the house of the accused that this was not his first
~rime but he had committed crimes in other premises
H
\
376
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A also. The offences committed by the appellant were
neither under duress nor on provocation and an innocent
life was snuffed out by him after committing violent rape
on the victim. He did not feel any remorse in regard to his
actions, The remorseless attitude of the appellant is
B further evident from the fact that after having committed
such heinous offences on 28.2.1998, within two days on
2.3.1998 he attempted a similar crime in the house of one
'S'. and was caught by the public while trying to escape,
as evidenced by P.Ws 18 and 20. As has been indicated
c by the courts below, the antecedents of the appellant and
his subsequent conduct indicates that he is a menace to
society and is incapable of rehabilitation. In such
circumstances, it cannot be said that this is a fit case
which merits any interference. The death sentence
0 awarded to the appellant is confirmed. [paras 51, 56 and
57] [408-E-H; 407-C-D; 409-C]
E
*Bachan Singh Vs. State of Punjab (1980) 2 SCC 684)
and **Machhi Singh Vs. State of Punjab (1983) 2 SCC 470
- referred to
Ho/iram Bordoloi Vs. State of Assam (2005) 3 SCC 793;
Dilip Premnarayan Tiwari & Anr. Vs. State of Maharashtra
(2010) 1 SCC 775; Ronny alias Ronald James Alwaris & Ors.
Vs. State of Maharashtra (1998) 3 SCC 625; Om Prakash Vs.
F State of Haryana (1999) 3 SCC 19) (1) Akhtar Vs. State of U.P.
(1999) 6 SCC 60; (2) Bantu alias Naresh Giri Vs. State of
M.P. (2001) 9 SCC 615; (3) Surendra Pal Shivbalakpa/ Vs.
State of Gujarat (2005) 3 SCC 127; (4) Ku/winder Singh Vs.
State of Punjab (2007) 1 o sec 455; and (5) Sebastian alias
G Chevithiyan Vs. State of Kera/a (2010) 1 SCC 58; M.A.
Antony v. State of Kera/a (2009) 6 SCC 220, Ram Singh v.
Sonia & Ors. (2007) 3 SCC 1 and Gura Singh v. State of
Rajasthan (2001) 2 SCC 205, Mohd. Aman & Anr. Vs. ·State
of Rajasthan (1997) 1 o sec 44 and State of Uttar Pradesh
Vs. Ram Babu Misra (1980) 2 SCC 343 -cited
H
B.A. UMESH v. REGR.GEN.HIGH COURT OF
KARNATAKA
377
Case Law Reference: ~
2010 (2) SCR 119
(1997) 10 sec 44
(1980) 2 sec 343
held inapplicable para 11
cited
cited
cited
cited
cited
cited
cited
cited
para 15
para 15
para 21
para 21
para 22
para 22
para 22
para 22
A
B
c
(1998) 3 sec 625
(1999) 3 sec 19
(1999) 6 sec 60
c2001) 9 sec 615
(2005) 3 sec 121
c2001) 1 o sec 455
c201 O) 1 sec 58
(2009) s sec 220
(2007) 3 sec 1
(2001) 2 sec 205
(1980) 2 sec 684
(1983) 2 sec 470
(2005) 3 sec 793
(201 O) 1 sec 775
cited
para 22
D
cited
cited
para 27
para 28
cited
referred to
referred to
cited
para 28
E
para 33
para 33
para 39
cited
para 39
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 285-286 of 2011.
F
From the Judgment & Order dated. 4.10.2007 and
G
18.2.2009 of the High Court of Karnataka at Bangalore in
Criminal Referred Case No. 3 of 2006 C/w. Criminal Appeal
No. 2408 of 2006.
H
378
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A
Kiran Suri, S.J. Amith, Ankolekar Gurudatta, Vijay Kumar
Aparna Bhat for the Appellant.
Anitha Shenoy, Rashmi Nandakumar, B.S. Gautham for the
Respondent.
B
The Judgment of the Court was delivered by
ALTAMAS KABIR, J. 1. Leave granted.
2. These Appeals have been filed by the Appellant
questioning the judgment and order dated 4th October, 2007,
C passed by the Karnataka High Court in Criminal Referred Case
No.3 of 2006 and Criminal Appeal No.2408 of 2006 rejecting
the Appellant's appeal and confirming the death sentence
awarded to him by the Sessions Judge, Fast Track Court VII,
Bangalore City, in S.C.No. 725 of 1999, by judgment and order
D dated 26th October, 2006.
3. According to the prosecution, Jayashri, mother of
Suresh (P.W.2) and sister of Manjula (P.W.22), was married
to one Dr. Maradi Subbaiah who died about two years prior to
E .28.02.1998 on which date the incident which resulted in
S.C.No.725of1999 is alleged to have occurred. After the death
of her husband, Jayashri and her son Suresh, were staying in
premises No.14/8 situated at Dasarahalli, Bhuvaneshwarinagar,
Bangalore, as a tenant of one Lalitha Jaya (P.W.8). Suresh was
F studying in Upper K.G. in Blossom English School. His mother
would drop him to school at Bagalkunte·at 8.30 a.m. and would
bring him back at 1.00 p.m. after classes were over.
4. On 28.2.1998, Jayashri took Suresh to school as usual
at 8.30 a.m. and brought him back at 1.00 p.m. and they had
G lunch together in the house. After lunch, Suresh went out to play
with his friends and apart from Jayashri there was no one else
in the house. Suresh returned to the house at about 5.00 p.m.
and saw the accused, BA. Umesh, in the hall of the house who
introduced himself as "Uncle Venkatesh" and told Suresh that
H
B.A. UMESH v. REGR.GEN.HIGH COURT OF
379
KARNATAKA [ALTAMAS KABIR, J.]
his mother, Jayashri, was possessed by the devil and that he A
had, therefore, tied her hands and was going to bring a Doctor.
The accused then left the house with a bag filled with articles.
According to the prosecution, Basvaraju (P.W.10) and Natesh
(P. W.11) saw the accused going oμt of Jayashri's house with
the bag on 28.2.1998 at about 4.30 p.m. Suresh then went into B
the room and saw his mother lying flat on the ground with blood
on the floor and her hands tied together with a sari at one end
and the other end of the sari was tied to a window. As she did
not respond to his voice, Suresh went to Kusuma Shetty
(C.W~7), a neighbour, and told her what he had seen. Kusuma c
Shetty called Geetha Hegde (C.W.6) and Lalitha Jaya (P.W.8)
and together they went near Jayashri's hO'use with Suresh and
through the window they saw Jayashri lying on the ground.
Lalitha Jaya then called Bylappa (P.W.7), a Police Constable,
living in the same locality who telephoned Papanna (P.W.9), D
the Inspecting Officer, who came to the place of occurrence with
Police Constable Garudappa (P.W.6). In the meantime, on
being informed, A. Kumar (P.W.14) a Police Constable working
in the Dogs Squad, Jagannath (P.W.16), a Police Photographer
and R. Narayanappa (P.W.13) a Police Inspector and fingerE
print expert arrived at the place of occurrence. B.N.
Nyamaagowda (P.W.29), the Investigating Officer, found that
Jayashri was lying dead on the floor with her genitals exposed
and blood oozing from her vagina. The doors of an almirah in
the house were open and articles in the house were lying
scattered. He prepared a report and sent the same through
F
P.W.6 to the Police Station to register a crime. P.W.6 took the
said report to Peenya Police Station and the same was
registered as Crime No.108 of 1998 .. He then prepared a First
Information Report and sent the same to Court. A copy of the
F.l.R. was also sent to P.W.29, the Investigating Officer. P.W.14 G I
had come from the Dogs Squad with Dhrona, a sniffer dog, who
having sniffed the dead body and Jayashri's clothes went
towards the pipeline and returned. P .W.16, the Police ·
Photographer, took photographs of the dead body and the
scene of offence. P.W.13, the finger-print expert, found fingerH ·
380
SUPREME COURT REPORTS
[2011) 2 S.C.R.
A
prints on a wall clock and also on the handle of the almirah
(Exts. P.14 and P.15). P.W.29, thereafter, conducted inquest
over the dead body in the presence of Panch witnesses,
P.Ws.2, 3 and 4, and sent the dead body for Post- mortem
examination to Dr. Somashekar (P.W.26) who after conducting
B
the Post-mortem on Jayashri's dead body opined that death
had occurred due to smothering after commission of sexual
a~;sault.
5. On 2.3.1998 at about 2.30 p.m., on receipt of an
information in the Central Room that the public had
C
apprehended a thief, P.\f/.18 went to the spot and came to learn
that the person who had been apprehended had tried to commit
a robbery in the house of Smt. Seeba and had caused bleeding
injuries to her person. On enquiry it transpired that the name of
the apprehended person was Umesh Reddy and that he had
D
c<>mmitted many crimes at various places, including the house
of the deceased. Umesh Reddy volunteered to show the place
where he had kept the robbed articles. He, thereafter, revealed
that his name was Venkatesh and that he had taken the
premises belonging to P.Ws.5 and 17 on lease. According to
E
the prosecution, the appellant approached Maare Gowda
(P.W.4) to get him a place on rent and P.W.4 took him to his
relative M.R. Ravi (P.W.5) who along with Jayamma (P.W.17)
was the owner of a tenement in which he agreed to rent a
premises to the appellant on a monthly rental of Rs.350/-. On
F
the agreed terms the appellant occupied the premises
belonging to P.Ws.5 and 17.
6. It is the further case of the prosecution that the appellant
voluntarily led the Police and the Panchas P.Ws:12 and 29 to
G the premises under his occupation as a tenant under P.Ws.5
and 17 and showed them 191 articles, including 23 items said
to have been recovered from the house of the deceased, which
were seized under mahazar (Ex.P .11 ). The remaining articles
were seized in connection with other cases registered against
H the appellant. The body of the deceased was sent for Post-
B.A. UMESH v. REGR.GEN.HIGH COURT OF
381
KARNATAKA [ALTAMAS KABIR, J.]
mortem on 3.3.1998 and on the same day the sample finger
A
prints of the appellant was taken by Mallaraja Llrs (C.W.25) in
the presence of P.W.29. The appellant was sent for medical
examination and was'examined by P.W.26 who issued the
wound certificate regarding the injuries found on the body of
the appellant. P.W.22, Manjula, the sister of the decea~ed,
identified the articles (M.Os.1 to 22) seized under mahazar
(Ex.P .11) as articles belonging to Jayashri and also stated that
1 Jayashri had been married to Dr. Maradi Subbaiah. Thereafter,
B
,<m the requisition of P.W.29 the Taluka Executive Magistrate
(P.W.24) conducted Test Identification Parade on 30.3.1998 and c
P.Ws.2, 10, 11and17 identified the appellant at the saidT.I.
Parade. The articles seized in the case were sent by P.W.29
to the Forensic Science Laboratory and after receiving the
serology report, P.W.29 completed-the investigation ~nd filed
Charge Sheet against the appellant of having con;imitted
D
offences punishable under Sections 376, 302 and 392 1.P.C.
The .case was committed to the Court of Sessions and charge
was framed against the appellant under Sections 376, 302 and
392 l.P.C. The appellant.pleaded not guilty to the charges and
claimed to be tried·.
7. 'The prosecution examined 29 witnesses who proved
Exts. P1 to P48(a). During cross-examination of P.Ws.5, 16,
17 and 18, the defence proved Exts.D1 to 04 through the said
witnesses .. M.Os. 1 to 32 were marked on behalf of the
E
prosecution. The statement of the appellant under Section 313
F
Cr.P.C. was recorded. The defence of the appellant was one
of denial. No witness was examined on behalf of the appellant.
After considering the submissions of the learned Public
Prosecutor and the learned counsel for the appellant and after
appraising the oral and documentary evidence, the trial Court
G
held that the prosecution had proved beyond all reasonable
doubt that the appellant had committed the offences with which
he had been charged and found hirn guilty of the offences
punishable under Sections 376, 302 and 392 1.P.C. After
hearing the appellant and the learned counsel for the appellant
H
382
SUPREME COURT REPORTS
[2011) 2 S.C.R.
A on the question of sentence, the trial Court sentenced the
appellant to suffer 7 years rigorous imprisonment and to pay a
fine of Rs.25,000/- and in default of payment of the fine to suffer
further rigorous imprisonment of 2 years for the offence
punishable under Section 376 l.P.C. The appellant was also
B sentenced to undergo 10 years rigorous imprisonment and to
pay a fine of Rs.25,000/- and in default of payment of the fine
to suffer further rigorous imprisonment of 2 years for the offence
punishable under Section 392 l.P.C. The appellant was lastly
sentenced to death by hanging for the offence punishable under
C Section 302 by the trial Court which also made a reference to
the High Court under Section 366 Cr.P.C. for confirmation of
the death sentence, and the same was renumbered as Criminal
Reference Case No.3 of 2006. Being aggrieved by the
judgment of conviction and sentence passed against him by the
0 trial Court, the appellant also preferred CJiminal Appeal
No.2408 of 2006.
8. The Reference and the Appeal were heard together and
upon a fresh look at the evidence on record, and in particular
the oral evidence of P.W.2 (son of the deceased), P.W.3
E (neighbour), P.W.8 (landlady of the appellant), P.W.9 (Mazahar
witness), P.W.26 (doctor who conducted the Post-mortem
examination on the body of the deceased), P.W.27 (Forensic
Expert) and the Post-Mortem, FSL and Serology Reports,
dismissed the Appellant's Criminal Appeal No.2408 of 2006
F and confirmed the judgment of conviction dated 26.10.2006
passed by the Sessions Judge, Fast Track Court-VII, Bangalore
City, in S.C.No.725of1999. Consequently, on the finding that
there was no possibility of the appellant's reformation in view
of his conduct despite his earlier convictions and punishment
G in earlier cases of robbery, dacoity and rape, the High Court
held the present case to be one of the rarest of rate cases which
warranted confirmation of the death penalty awarded by the trial
Court, and answered Criminal Reference Case No.3 of 2006
made by the Sessions Judge, Fast Track Court-VII, Bangalore,
H by confirming the death sentence.
B.A. UMESH v. REGR.GEN.HIGH COURT OF
383
KARNATAKA [ALTAMAS KABIR, J.]
. 9. Appearing for the appellant, Ms. Kiran Suri, learned
A
advocate submitted that the appellant's conviction was based
entirely on circumstantial evidence which was itself based on
inference which was of no evidentiary value. Ms. Suri urged that
the prosecution had almost entirely relied on the evidence of
P.W.2, Suresh, the son of the deceased, who was a minor of B
7 years at the time of the incident, and P.W.s 10 and 11,
· Basavaraju and Natesh, who claimed to have seen the
appellant comi~g out of the house of the deceased and P.W.
17, Jayamma, the landlady of the appellant who identified the
appellant in the Test Identification Parade.
c
10. Ms. Suri submitted that the other prosecution
witnesses were those who had been associated with the
investigation in one way or the other, such as P.W. 13,
Narayanappa, the finger-print expert who found the finger-print. 0
of the appellant on the handle of the almirah in the victim's
room, P.W.26, the doctor who conducted the Post-mortem
examination on the body of the victim, P.W.27, D.
Siddaramaiah, Forensic Expert and P.W. 29, the Investigating
Officer in the case.
11. Ms. Suri contended that as far as P .W.2 is concerned,
he being a minor of 7 years when the incident had taken place,
his testimony would have to be treated with caution. Ms. Suri
also contended that from an analysis of the evidence on record
E
it is extremely doubtful as to whether P.W.2 was at all present
F
when the deceased was killed. Ms. Suri urged that had P.W.2
seen the appellant in the house at the time of the incident, as
stated in his evidence, he would certainly have reacted in a
manner different from what has been indicated. More
importantly, ifthe appellant had been in the house when P.W.2 G
is said to have seen him at the time of the incident, nothing
prevented him from eliminating P:W.2, who was a minor child
of seven, in order to remove the only witness who could link
him with the murder, in the absence of any other person in ttie
house. Ms. Suri pointed out that not only was P.W.2 7 years
H
384
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A old when the incident had occurred, but his evidence was taken
7 years thereafter which raised doubts as to its correctness and
accuracy. Ms. Suri urged that even the state in which he found
his mother after the appellant is said to have left the house, -
indicated that he had come on the scene after the other
B witnesses had come in and covered her body with a sari. Even
in respect of identification of the appellant by P.W.2 at the
Central Jail, Bangalore, it was submitted that a photograph of
the appellant had been published in the newspapers throwing
doubt on such identification. Ms. Suri urged that the same
c reasoning will also hold good as far as identification of the
appellant by P .Ws 10 and 11, Basavaraju and Natesh, are
concerned, since they were only chance witnesses. While
P.W.10 was living in a house opposite to the rented
accommodation of the appellant, P.W.11 was a close
0
neighbour of the deceased, and it is only by chance that they
claim to have been present at the exact moment when the
appellant allegedly came out of the house of the deceased. Ms.
Suri submitted that as had been held by this Court in Musheer
Khan alias Badshah Khan & Anr. Vs. State of Madhya
Pradesh [(2010) 2 SCC 748], the reliability of a Test
E ldErntification Parade under Section 9 of the Evidence Act,
1872, becomes doubtful when the same is held much after the
incident and when the accused is kept in police custody during
the intervening period. Ms. Suri submitted that while the incident
is stated to have occurred on 28.2.1998, the T.I. Parade was
F conducted by the Tehsildar K.S. Ramanjanappa (P.W.24) on
30.3.2005 about seven years after the incident had taken place.
12. Ms. Suri then took up the question of recovery of M.Os.
1 to 23 from the house of the appellant in the presence of P.Ws.
G 4, 5 and 12. It was urged that the evidence of P.W.4, Maare
Gowda, the appellant's landlord, in cross-examination, was
sufficient to throw doubts over P.W.5 Ravi's role as a panch
witness to the recovery of the articles which were later identified
as belonging to the deceased by her elder sister Manjula
H (P.W.22). Even as far as P.W.12 Manjunath is concerned, Ms.
B.A. UMESH v. REGR.GEN.HIGH COURT OF
385
KARNATAKA [ALTAMAS KABIR, J.]
Suri submitted that it was quite evident that he was not an
A
independent witness as he used to serve tea, coffee and food
to the people in Peenya Police Station, including those in the
lock-up, and was available as a witness whenever called upon
·by the police.
B
13. From the Mahazar prepared in the presence of P.Ws
t 5 and 12, Ms. Suri pointed out item No.186 which was
described as a cream-coloured panty with mixed stains which
was said to have been removed by the appellant to have sexual
intercourse with the deceased and was thereafter worn by him
C
while returning home. Learned counsel submitted that in his
evidence P.W.29, the Investigating Officer, had indicated that
he had seized an underwear which was white in colour and only
subsequently another cream-coloured underwear yvas shown to
· him which was marked as M.0.32. Referring to the list of
Material Objects marked by the prosecution, Ms. Suri pointed
D
out M.0.28, which was shown as a white underwear, while
M.0.32 was shown as a cream-coloured underwear. Ms. Suri
submitted that No.23-a design sari, M.0.25-white colour
_brassiere, M.0.26-Red colour blouse and M.0.27-Red colour
cloth like tape, had been recovered from the body of the
E
deceased by P.W.26, Dr. M. Somasekar, who conducted the
Post-mortem examination on the body of the deceased and ·
proved the same in his evidence. Ms. Suri submitted that there
was no mention of recovery of any panty or underwear from the
body of the deceased during the Post-mortem examination. On
F
the other hand, M.0.28, which was a white underwear and
certain blood samples {M.Os.29 and 30) had been proved by
the forensic expert, D. Siddaramaiah {P.W.27), which
established the fact that the white underwear M.0.28 and not
.
.
'
M.0.32, the cream-coloured panty which the accused is alleged
G
to have worn after sexually assaulting the deceased, had been
sent to the Serologist for examination. Ms. Suri submitted that
the cream-coloured panty was subsequently introduced in the
investigation by P.W.29, inasmuch as, in his evidence P.W.27
clearly stated that the white underwear {M.0.28) did not contain
H
386
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A any trace of semen. Ms. Suri also pointed out that in his
evidence P.W.29 had stated that while drawing up the Mahazar
he had seized one underwear. On the basis of the evidence
led by the prosecution the said underwear could only have been
M.0.28 listed in the Mahazar, which was sent to F.S.L. and was
B proved by P.W.27, on which traces of human blood had been
found, but not semen. It was during his examination-in-chief that
a cream-coloured panty which had not been sent to the F.S.L.,
was shown to P.W.29 and was marked M.0.32. Ms. Suri
submitted that since the white underwear was shown as M.0.28
c in the Mahazar, the same could only be taken into consideration
in appraising the evidence.
14. Ms. Suri then addressed the third aspect of the
prosecution case relating to lifting of the finger print of the
appellant from the handle of the almirah in the room of the
D deceased. It was contended that the procedure adopted for
obtaining the finger print of the appellant by P.W.25, while he
was in custody, for the purpose of comparison with the finger
print lifted from the handle of the almirah in the room of the
deceased, left sufficient room for doubt about the authenticity
E of the finger print 'taken from the appellant for the purpose of
comparison. It was submitted that rather curiously all the other
. finger prints in the room, including the one taken from the wall
clock, were smudged and were of no use for the purpose of
comparison, which also gave rise to doubts as to whether the
F finger prints alleged to have been taken from the handle of the
almirah in the rooni of the deceased, had actually been lifted
fmm the said place. Ms. Suri submitted that the finger print of
the appellant taken by P.W.25 when the appellant was in
custody, should have been taken before a Magistrate to ensure
G its authenticity. Furthermore, although, the said finger print was
taken on 8.3.1998, the same was sent to the F.S.L. only on
15.3.1998.
15. Referring to the provisions of the Identification of
Prisoners Act, 1920, Ms. Suri submitted that Section 2(a)
H
B.A. UMESH v. REGR.GEN.HIGH COURT OF
3'87
KARNATAKA [ALTAMAS KABIR, J.]
1defined "measurements" to include finger impressions and
Section 2(b) defined "Police Officer" to mean an officer in
charge of a police station, a police officer making an
investigation or any other police officer. not below the rank of
Sub-Inspector. Learned counsel also pointed out that Section
A.
4 of the Act provided for the taking of measurements of non- . B
convicted persons, which under Section 5 could be ordered by
a Magistrate if he was satisfied that the same was for the
purpose of investigation. Ms. Suri, however, also pointed out
that in State of Uttar Pradesh Vs.