2005 Supreme(SC) 710

2005(3) Supreme 548
Supreme Court of India
(From Karnataka High Court)
K.B. Balakrishnan & B.N. Srikrishna, JJ.
Saibanna —Appellant
versus
State of Karnataka —Respondent
Criminal Appeal No. 656 of 2004
Decided on 21-4-2005
Counsel for the Parties :
For the Appellant : Ms. Subhadra Chaturvedi, Advocate (A.C.).
For the Respondent : Sanjay R. Hegde, Anil Kr. Misra and Rohan Singh, Advocates.

Important point
It is only when the culpability assumes the proportion of total depravity that “special reason” within the meaning of Section 354(3) Cr.P.C. for imposition of the death penalty can be said to exist.

Headnote:(i) Indian Penal Code, 1860—Section 302—Appellant suspecting fide­lity of his wife assaulted her with jambia while she was a sleep in night and then assaulted his 1½ year old daughter and both died—PW21, an old woman related to appellant, on hearing cries saw appellant assaulting deceased—Cross examination of witness produced no discrepancies or contradictions where­by she could be disbelieved—Fact that she was 70 years old related to appellant would gain nothing by levelling false allegation—Other witnesses were post incident witnesses who all spoke about presence of PW21 at that spot and seeing injuries on both deceased and their evidence was corroborative—Though initially charge was framed under Section 303 IPC as accused ­already convict for murder of his earlier wife had committed murder in present case, Section 303 IPC having been struck down as unconstitutional, conviction was made under Section 302 IPC as there was no prejudice by change of the charge—Conviction could not be interfered with. (Paras 5 to 8)

       (ii) Indian Penal Code, 1860—Section 302—Sentence—Appellant accused committed murder of his wife and 1½ year old daughter—Death sentence by Courts below—Appeal—Appellant had earlier committed murder of his 1st wife and was convicted and was on parole when committed murder in present case—Whether circumstances made it a “rarest of rare case” was a matter of judicial assessment—High Court was right in reaching conclusion that appellant’s case called for imposition of death penalty.

       Held : In the case of Bachan Singh v. State of Punjab [(1980) 2 SCC 684] 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 [(1983) 3 SCC 470] 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. (Paras 9 and 10)

       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 1½ 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. (Para 14)

       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. (Para 20)