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Supreme Court of India
B.S. CHAUHAN & S.A. BOBDE, JJ.
Madhu @ Madhuranatha & Another – Appellants
Versus
State of Karnataka – Respondent
Criminal Appeal Nos. 1357-1358 of 2011 with Criminal Appeal No. 109 of 2013
Decided On : 28-11-2013
AIR 1984 SC 1622; AIR 2005 SC 1000; AIR 2011 SC 200 - Relied upon
(b) Criminal Trial - Evidence - Discrepancies - Minor discrepancies or irrelevant details - Do not matter - Court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter. (Para 9)
JT 2013 (8) SC 181; AIR 1985 SC 48; AIR 2009 SC 152; (2010) 8 SCC 191 - Relied upon
(c) Criminal Trial - Witness - Police personnel - Evidence as recovery witness - Cannot be discarded merely because witnesses are police personnel - More so when they were not cross-examined. (Para 10)
AIR 1995 SC 1930; AIR 1993 SC 1212; (1996) 11 SCC 139; AIR 1998 SC 201; AIR 2003 SC 4311; AIR 2007 SC 2040; AIR 2013 SC 1204; AIR 1994 SC 226; AIR 1998 SC 1328; AIR 2001 SC 3207; AIR 2005 SC 1096 - Relied upon
(d) Code of Criminal Procedure, 1973 - Section 174(1) - Exhuming dead body - Executive Magistrate has to be informed - His permission not necessary - It can be done 'unless otherwise provided in any rule' - More so when inquest report nor post-mortem report is substantial piece of evidence - Any discrepancy therein cannot be fatal to prosecution case. (Para 13)
AIR 1975 SC 1252; AIR 1978 SC 1558; AIR 1992 SC 1944; AIR 1998 SC 1376; AIR 2000 SC 2207; AIR 2001 SC 3031 - Relied upon
(e) Code of Criminal Procedure, 1973 - Section 176 - Police exhuming dead body - Objected by defence on ground of being irregular in terms of section 174(1) - This is only procedural lapse - Further, evidence collected even by improper or illegal means is admissible if it is relevant and its genuineness stands proved - Such evidence cannot be discarded unless accused is prejudiced. (Para 14)
JT 2013 (12) SC 213; AIR 1974 SC 348 - Relied upon
(f) Criminal Trial - Last seen theory - Accused seen last with deceased just before incident - Presumption is raised about his guilt - It is for the accused to rebut the same. (Para 15)
AIR 1972 SC 2077; (1992) 3 SCC 106 - Relied upon
(g) Code of Criminal procedure, 1973 - Section 313 - Incriminating circumstances against accused - Obligatory on accused to explain such circumstances. (Para 16)
AIR 2010 SC 762; Dr. Sunil Clifford Daniel - Relied upon
(h) Indian Penal Code, 1860 - Section 302 - Sentencing - Courts below awarding death sentence - Considering balance of aggravating and mitigating circumstances, instant case not rarest of rare - Sentence modified to imprisonment for 30 years without remission. (Paras 18 to 20)
AIR 1980 SC 898; AIR 1983 SC 957; AIR 2002 SC 1661; AIR 2011 SC 2689; (2012) 5 SCC 766; (2011) 12 SCC 56; (2008) 13 SCC 767; (2012) 8 SCC 537; (2013) 2 SCC 713 - Relied upon
Facts of the Case:
This is an appeal against conviction under Sections 364/302/201 r/w Section and various sentences including death penalty.
Finding of the Court:
Impugned judgment is sustainable.
Result : Appeal partly allowed.
Judgment :-
Dr. B.S. Chauhan, J.
1. These criminal appeals have been preferred against the impugned judgment and order dated 8.9.2010, passed by the High Court of Karnataka at Bangalore in Criminal Appeal Nos.833, 855 and 864 of 2008 by which the High Court has affirmed the death sentence and confirmed the judgment and orders of the learned District & Sessions Judge dated 11/17.7.2008, passed in Sessions Case No.152 of 2005 with certain observation about the charging Sections of the Indian Penal Code 1860 (hereinafter referred to as ‘IPC’) by which and whereunder the appellants have been convicted under Sections 364/302/201 r/w Section 34 IPC and for the offences punishable under Section 364 r/w Section 34 IPC, sentenced to undergo RI for 7 years and a fine of Rs.25,000/- each and in default of payment of fine to undergo a further imprisonment for a period of 18 months. They have been further convicted under Section 201 r/w Section 34 IPC and sentenced to undergo RI for 5 years and a fine of Rs.10,000/- each and in default to undergo further RI for a period of 12 months. All the three appellants have been further convicted under Section 302 r/w Section 34 IPC and awarded death penalty.
2. Facts and circumstances giving rise to these appeals are that:
A. Madhusudhan, deceased had gone from Anandpura to Sagar on being asked by his uncle Prahlad (PW.1) to collect the outstanding dues in respect of sale and purchase of ginger from K.B. Sreenath (PW.2) and K.S. Kiran (PW.12). As Madhusudhan did not turn up, Prahlad (PW.1) got worried and contacted K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) to find out the whereabouts of Madhusudhan. Both K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) informed Prahlad (PW.1) that Madhusudhan had collected Rs.2,50,000/- and Rs.1,50,000/- respectively from them at about 12.30 P.M. and left for Anandpura. Prahlad (PW.1) contacted all his relatives and friends to find out the whereabouts of Madhusudhan but all in vain.
B. K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) filed a complaint FIR No. 148/2005 (Ex.P-84) in the Police Station, Sagar against unnamed persons suspecting that Madhusudhan had been kidnapped. In the meanwhile there were rumors in Anandpura that the appellants had looted the money and killed Madhusudhan as some persons i.e. Nagesh (PW.4); Sirajuddin (PW.5); Nagendra (PW.3); and Chandrashekar (PW.6) had come forward and informed that they had seen Madhusudhan, deceased in the company of appellants on 8.8.2005 at 12.45 P.M.
C. In view of this, an FIR was lodged on 11.8.2005 against the appellants and one Lakshmeesha under Section 365 r/w Section 34 IPC at Police Station Anandpura. The Police tried to trace Madhusudhan as well as the appellants. It came to the knowledge of the investigating agency that the deceased was seen in the company of the appellants in a Maruti van bearing Registration No.KA-15-3112 on which “Kadala Muttu” had been written on the back side. Thus, the Investigating Officer tried to search for the said vehicle and came to know that it belonged to Jayanna @ P. Aya (A.3).
D. The location of mobile phone of Jayanna @ P. Aya (A.3) was put on surveillance/watch and thereby he was arrested on 12.8.2005 at Anandpura and on the same day Rafiq @ Munna (A.2) was arrested by a separate team of police at Bangalore from the house of Felix D’Costa (PW.10). Madhuranatha (A.1) surrendered before the police on the same day. They made certain voluntary statements, on the basis whereof, recoveries were made. Jayanna @ P. Aya (A.3) took the police and others persons (recovery witnesses) to the forest area and pointed out to a place wherefrom the dead body was exhumated. Only the trunk of the body was found as the head had been chopped off and thrown in the nearby Nandi river. Prahlad (PW.1), Srinivasa (PW.15), Shivananda (PW.16), Devaraja (PW.17) and K. Keshavamurthy (PW.22) witnessed the said recovery and identified the corpse. However, in spite of the efforts made by the police, the head could no
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