2016 Supreme(SC) 792

SUPREME COURT OF INDIA
Ranjan Gogoi, Prafulla C. Pant, A.M. Khanwilkar, JJ.
B.A. Umesh – Petitioner
Versus
Registrar General, High Court of Karnataka – Respondent
Criminal Misc. Petition Nos. 4213-4214 of 2016 In Review Petition (Criminal) Nos. 135-136 of 2011 in Criminal Appeal Nos. 285-286 of 2011
Decided On : 03-10-2016

IMPORTANT POINTS
Despite the convict having right to be heard before sentence, there is no mandate to fix separate date for hearing on sentence. Review petition cannot be allowed merely for the reason that no separate date is given for hearing on the sentence.
Evidence of child witness if found natural, trustworthy and without any chance of being tutored, cannot be taken lightly as mitigating circumstances.
When one Judge of the Division Bench affirmed death sentence and the dissenting judge also opining it to be rarest of rare cases, but awarding imprisonment for whole of natural life thinking it to be more deterrent, and the third Judge confirmed death sentence; the death sentence need not be commuted to life imprisonment on ground of one Judge not agreeing to death penalty.
When aggravating circumstances grave and far more serious as against mitigating circumstances, there is no reason to review or modify the death sentence.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 235(2) – Convict has right to be heard before sentence – However, there is no mandate to fix separate date for hearing on sentence – Review petition cannot be allowed merely for the reason that no separate date is given for hearing on the sentence. (Para 8)

       (1977) 3 SCC 68; (1977) 3 SCC 218; (2013) 10 SCC 421 – Relied upon

       (b) Criminal trial – Appreciation of evidence – Child witness aged seven years – Evidence found natural, trustworthy and without any chance of being tutored – Cannot be taken lightly as mitigating circumstances. (Para 13)

       (c) Indian Penal Code, 1860 – Section 302 – Death penalty – Judges of Division Bench of High Court differing on death penalty – Dissenting Judge also, however, opining it to be rarest of rare cases – In his opinion imprisonment for whole of natural life would be more deterrent – Third Judge confirming death sentence – Death sentence need not be commuted to life imprisonment. (Para 15)

       AIR 1954 SC 436; (1999) 9 SCC 323; Criminal Appeals Nos. 292-293 of 2014 – Distinguished

       (d) Indian Penal Code, 1860 – Section 302 – Instantly, aggravating circumstances grave and far more serious as against mitigating circumstances – As such, even after open hearing, Court refusing to allow the Review Petitions or modify the judgment and order passed. (Para 20)

       (2014) 9 SCC 737 – Followed

       (2011) 3 SCC 85; (1980) 2 SCC 684; (1983) 3 SCC 470 – Referred

       Facts of the case:

       Jayashri (deceased), after death of her husband, used to live with her son PW-2 Suresh, aged seven years, in Bhuvaneshwarinagar, Bangalore, as a tenant of PW-8 Lalitha Jaya. On 28.02.1998 as usual the deceased brought back her son at 1.00 p.m. from the school. After lunch at home, the son went out to play with his friends. When he returned home at about 5.00 p.m., he noticed that petitioner B.A. Umesh going out through hall and told him that he was “uncle Venkatesh”.

       When Suresh went into the room, he saw his mother lying flat on the ground with blood on the floor.

       PW-26 Dr. Somashekar conducted autopsy on the dead body and opined that the deceased was smothered after commission of sexual assault.

       On 02.03.1998 at about 2.30 p.m., petitioner B.A. Umesh was arrested while committing another robbery in the house of Smt. Seeba. As many as 191 articles, including 23 items stolen from the house of the deceased, were recovered by the police from said house, and a mahazar (Ext. P-11) was prepared. On completion of investigation, a charge-sheet was filed against the petitioner for his trial in respect of offences punishable under Sections 376, 302 and 392 of Indian Penal Code.

       The trial court convicted the accused/petitioner under Sections 302, 376 and 392 IPC.

       The trial court sentenced the convict to death under Section 302 IPC and he was directed to be hanged by neck till he is dead. The trial court further awarded sentence of rigorous imprisonment for a period of seven years to the convict and directed him to pay fine of Rs.25,000/- under Section 376 IPC. He was further sentenced to rigorous imprisonment for a period of ten years and was directed to pay fine of Rs.25,000/-under Section 392 IPC.

       The conviction of the petitioner was affirmed by the High Court on all the three counts, i.e. under Sections 302, 376 and 392 IPC. The High Court eventually confirmed the sentence of death, and dismissed the criminal appeal.

       Criminal Appeals filed on behalf of the petitioner were dismissed by Supreme court. Thereafter, the petitioner filed Review Petition (Crl.). After consideration of the same (by circulation), opining again that it is a case of rarest of rare, this Court declined to interfere with the judgment and order dated 01.02.2011 passed in the criminal appeals. Consequently, these Criminal Miscellaneous Petitions were filed, for open hearing, after law laid down by this Court in 2014 dealing with the matter of death sentence in Mohd. Arif (supra).

       Finding of the Court:

       There is no reason to allow the Review Petitions or modify the judgment and order passed.

       Result: The Review Petition (Criminal) Nos. 135-136 of 2011 stand dismissed. The Criminal Miscellaneous Petitions stand disposed of.