B.A. UMESHversusREGR.GEN.HIGH COURT OF KARNATAKA

                    [2011) 2 S.C.R.-367


                        B.A. UMESH                             A
                              v.
        REGR.GEN.HIGH COURT OF KARNATAKA
         (Criminal Appeal Nos.285-286 of 2011)
                    FEBRUARY 1, 2011
                                                               B
       [ALTAMAS KABIR AND A.K. PATNAIK, JJ.)

     PENAL CODE, 1860 :

       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.

                   The appellant-accused was convicted by the trial
           8
               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.

                     Dismissing the appeals, the Court
           G
                    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
                                                                '
           H
      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 Finger-
   Prints 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
      identified some of the articles seized by the Investigating
8
      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     c --
 appellant to the doctor, P.W.26, who examined him as to
 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]
                                                                D
       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
  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
  intercourse with the victim against her wishes. [para 50]
0
  [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 748-
    held 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

      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
                                                                 c-
 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
  awarded to the appellant is confirmed. [paras 51, 56 and
0
  57] [408-E-H; 407-C-D; 409-C]

         *Bachan Singh Vs. State of Punjab (1980) 2 SCC 684)
    and **Machhi Singh Vs. State of Punjab (1983) 2 SCC 470
    - referred to
E
       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) 1o 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) 1o 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                377
                  KARNATAKA
                     Case Law Reference: ~                    A
    2010 (2) SCR 119        held inapplicable para 11

    (1997) 10 sec 44        cited              para 15

    (1980) 2 sec 343        cited              para 15
                                                              B
     (1998) 3 sec 625       cited              para 21

    (1999) 3 sec 19         cited              para 21

    (1999) 6 sec 60         cited              para 22
                                                              c
    c2001) 9 sec 615        cited              para 22

    (2005) 3 sec 121        cited              para 22

    c2001) 1o sec 455       cited              para 22

    c201 O) 1 sec 58        cited              para 22        D
    (2009) s sec 220        cited              para 27
    (2007) 3 sec 1          cited              para 28

    (2001) 2 sec 205        cited              para 28        E
    (1980) 2 sec 684        referred to        para 33
    (1983) 2 sec 470        referred to        para 33

    (2005) 3 sec 793        cited              para 39
                                                              F
    (201 O) 1 sec 775       cited              para 39

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 285-286 of 2011.

    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 finger- E
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 finger- H ·
    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,         B
   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,
  ,<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·.
                                                                       E
      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
 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
  trial Court, the appellant also preferred CJiminal Appeal
0
  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.
 of the appellant on the handle of the almirah in the victim's 0
 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.
                                                                     E
        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
 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
  neighbour of the deceased, and it is only by chance that they
0
  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.]
1

  defined "measurements" to include finger impressions and A.
  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
  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. Ram Babu Misra [(1980) 2
  SCC 343), this Court while considering the provisions of       c
  Section 5 of the above Act and Section 73 of the Indian
  Evidence Act, 1872, held that Section 73 did not permit a Court
  to give a direction to the accused to give specimen writings
  for anticipated necessity for comparison in a proceeding which
  may later be instituted in the court. Direction under Section 73 D
  to any person present in the court to give specimen writings is
  to be given for the purpose of enabling the court to compare
  and not for the purposes of enabling the Investigating or other
. agency to make any comparison of such handwriting. Ms. Suri
  also referred to the decision of this Court in Mohd. Aman &
  Anr. Vs. State of Rajasthan [(1997) 10 SCC 44], where finger E
  prints of the accused found on a brass jug seized from the
  house of the deceased were kept in the police station for five .
  days without any justifiable reason. Furthermore, the specimen
  finger prints of the accused had not been taken before or under
  the order of the Magistrate and, accordingly, the conviction F
  based on the evidence of the finger prints of the accused on
  the brass jug were held to be not sustainable. Ms. Suri also
  referred to the decision in Musheer Khan's case (supra), where
  the question of the evidentiary value of a finger-print expert was
  considered apart from the question of identification and it was G
  held that such evidence fell within the ambit of Section 45 of
 the Evidence Act, 1872. In other words, the evidence of a finger
 print expert is not substantive evidence and can only be used
 to corroborate some items of substantive evidence which are
  otherwise on record and could not, therefore, have been one H
     388     SUPREME COURT REPORTS                 [2011) .2 S.C.R.


 A of the main grounds for convicting the appellant of the offences
     with which he had been charged.

         16. Regarding the charge of rape, Ms. Suri submitted that
    there was no evidence to connect the appellant with the offence.
    Not only were there no eye-witnesses, but even the oral
  9
-   evidence relied upcin by the prosecution or the Material Objects
    seized from the scene of the crime or recovered from the body
    of the victim during Post-mortem examination or from the
    appellant, established the commission of rape on the deceased
  C by the appellant.
          17. Ms. Suri submitted that having regard to the state of
     the evidence adduced by the prosecution, no case could be
     said to have been made out against the appellant either under
     Section 302 or under Sections 392 and 376 l.P.C.
 D
       18. Coming to the question of sentencing, Ms. Suri
   submitted that even if the conviction of the appellant under
   Sections 302, 392 and 376 l.P.C. was to be accepted, the
   case did not fall within the category of "rarest of rare cases",
 E which merits imposition of the death penalty. In order that a
   death sentence be passed on an accused, the court has to
   keep in mind various factors such as :

           (1)   that the murder of the deceased was not
                 premeditated;
 F
           (2)   that the accused did not have any previous criminal
                 record so as to draw a conclusion that the accused
                 was a menace to society;
           (3)   that the death was caused in a fit of passion;
 G
           (4)   that the accused was of young age and there was
                 nothing on record to indicate that he would not be
                 capable of reform; and

 H
      B.A. UMESH v. REGR.GEN.HIGH COURT OF                     389
           KARNATAKA [ALTAMAS KABIR, J.]

       (5)   that the death was not as a part of conspiracy or         A
             with the intention -of causing death.

        19. Ms. Suri submitted that the two Hon'ble Judges of the
· Karnataka High Court hearing the Criminal Appeal differed on
  the question of awarding death penalty to the appellant. Learned     B
  counsel submitted that Justice V.G. Sabhahit confirmed the
  death sentence imposed by the trial Court upon holding that
  there was something uncommon about the crime in the present
  case which renders the sentence of imprisonment for life
  inadequate. Justice Sabhahit held that the commission of the         c
  offence not only of rape but also of murder and theft indicated
  that the appellant was not only cruel, heartless, unmerciful and
  savage, but also brutal, pitiless, inhuman, merciless and
  barbarous, considering the fact that he had taken undue
  advantage of a helpless woman. However, Justice R.B. Naik,
                                                                       0
  while agreeing with the conviction of the appellant by the trial
  Court, was of the view that as a rule death sentence should be
  imposed only in the rarest of rare cases in order to eliminate
  the criminal from society, but the same object could also be
· achieved by isolciti:ig U1e criminal from society by awarding life   E
  imprisonment for the remaining term of the criminal's natural
  life. Ms. Suri submitted that on account of the difference of
  opinion of the two Hon'ble Judges, the question of sentencing
  was referred to a third judge, the Hon'ble Mr. Justice S.R.
  Bannurmath, who, in Criminal Reference Case No.3 of 2006,
  concurred with the view .taken by Justice Sabhahit and               F
  confirmed the death penalty imposed by the trial Court.
     20. Ms. Suri submitted that in order to have a deterrent
effect on social crimes, the view taken by Justice Naik was
more acceptable as it would have effect not only in removing           G
the accused from society, but would also enable him to realize
the gravity of the offence committed by him.
     21. In support of her submissions, Ms. Suri firstly relied on
the decision of this Court in Ronny alias Ronald James Alwaris         H
       \
    390      SUPREME COURT REPORTS                  [2011] 2 S.C.R.


A & Ors. Vs. State of Maharashtra [(1998) 3 SCC 625], where
  despite conviction under Sections 302, 449, 347, 394,
  376(2)(g), Sections 467, 471 and 201 read with Section 34
  1.P.C., this Court while upholding the conviction held that it was
  not possible to identify the case as being a rarest of rare case
B and, accordingly, commuted the death sentence imposed on
  the accused to life imprisonment. Reference was also made
  to the decision of this Court in Om Prakash Vs. State of
  Haryana [(1999) 3 sec 19], where upon conviction under
  Sections 302 and 307 read with Section 34 l.P.C. and Section
c 27(3) of the Arms Act, the accused was sentenced to death
  for committing the brutal murder of seven persons belonging
  to one family for the purpose of taking revenge. This Court
  taking into account the mental condition and age of the accused
  held that it could not be treated to be· one of the rarest of rare
0 cases and accordingly, commuted the death sentence to 9ne
  of imprisonment for life.

          22. In addition to the above, Ms. Suri also referred to (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)
E Surendra Pal Shivbalakpal Vs. State of Gujarat [(2005) 3 SCC
  127]; (4) Ku/winder Singh Vs. State of Punjab [(2007) 10 SCC
  455]; and (5) Sebastian alias Chevithiyan Vs. State of Kera/a
  [(2010) 1 sec 58]. In each of the said cases, this Court
  commuted the death sentence to life imprisonment on account
F of the circumstances which could not be included within the
  category of rarest of rare cases which merited the death penalty.

        23. Ms. Suri submitted that in the instant case also there
  is nothing on record to indicate that the appellant had any
G premeditated design to cause the death of the victim or that
  the circumstances indicated that the offence had been
  committed in a manner which brought it within the ambit of
  "rarest of rare cases", for which anything less than the death
  penalty would be inadequate. Ms. Suri submitted that taken at
  its face value all that can be said of the prosecution case is
H
      B.A. UMESH v. REGR.GEN.HIGH COURT OF                    '391
           KARNATAKA [ALTAMAS KABIR, J.]
 that the appellant committed rape and muroer of the deceased         A
 while committing theft at the same time, which did not make
 such offence one of the rarest of rare cases, which merited the
 death penalty.

        24. Appearing for the State, Ms. Anitha Shenoy, learned
                                                                      B
  Advocate, submitted that although the appellant's conviction
  was based on circumstantial evidence, such evidence had
  established a conclusive chain which clearly establish that no
  one other than the appellant could have.committed rape on the
  deceased and, thereafter, cause her death, besides committing       C
  theft of various articles from the house of the deceased. Ms.
  Shenoy submitted that the manner in which the murder had
. been committed after raping the deceased and his previous
  history of conviction in both rape and theft cases, as also his
  subsequent conduct after this incident, did not warrant
  interference with the death penalty awarded to the appellant.       D

       25. Ms. Shenoy submitted that from the Inquest Report it
 appears that the body of Jayashri was found in the bedroom
  lying on her back. Both her hands had been bound with a yellow,
 green and red-coloured flower designed sari and the other end        E
 of the sari had been tied to an inner window bar in the room.
 The tongue of the deceased was found to be protruding and
 both the eyes were closed. A designed sari was on the body
 and a pink-coloured blouse and white brassiere was on her
 shoulders. A red tape-lik.:: cloth was near the head of the          F
 deceased and there was bleeding frorn the sJeceased's
 genitals and blood was also found on the floor. In addition, there
 were injuries on her right breast and abrasions near her right
 elbow and stomach. Ms. Shenoy also referred to the deposition
 of P.W.9 who was a Mahazar witness, wherein it was stated            Gi
 that the deceased Jayashri was lying naked, there were                 I
 abrasions on her body and both of her hands were tied with a
 red tape lengthy cloth and the.other end was tied to a window.
 There were scratch marks on her breasts and blood oozing out
 of her genitals. What was also stated was th.at there were
                                                                      H
    392         SUPREME COURT REPORTS                [2011] 2 S.C.R.


A strangulation marks on her neck. Ms. Shenoy submitted that the
  Inquest Report and the Mahazar of the scene of occurrence was
  further corroborated by the evidence of P.W.1 (Police), P.W.2
  (son of deceased), P.W.3 (a neighbour), P.W.8 (landlady of the
  deceased) and P.W.29 (the Investigating Officer). Ms. Shenoy
B then urged that the Post-mortem report indicated that there was
  a faint ligature mark present on the front and sides of the neck
  over the thyroid cartilage in front 2 inches away from the right
  ear and 2.5 inches from the left ear. The other injuries noted
  were:
c         "1.    Laceration on the inner aspect of the upper lip
                 meddle 1 c.m. x 0.5 c.m. x-ray 5 c.m.

          2.      In both lips abrasion on inner aspect present.

D         3.     Abrasion three number present on upper part of
                 right side chest.

          4.      Laceration over left nostril with adjacent abrasion.

          5.     Scratch marks present over chest upper and
E                middle region and over right breast and below right
                 breast.

          6.     Abrasion over right forearm outer back aspect near
                 the elbow and wrist.
F         7.     Abrasion over left elbow outer aspect.

          8.     Upon dissection patches of contusion seen on
                 chest wall front.

                 Genital region blood stains seen at the vaginal
G
                 outlet. Laceration of vagina 1 c.m. in length from
                 vaginal outlet on the posterior wall was present.
                 Semen like material was present in the vagina,
                 which was collected and sent for Micro Biological
                 examination which shows the presence of sperms."
H
     B.A. UMESH v. REGR.GEN.HIGH COURT OF                     393
          KARNATAKA [ALTAMAS KABIR, J.]
      26. Ms. Shenoy also referred to the chemical examiner's A
report, wherein it was opined that the vaginal smear sent for
microbiological examination showed presence of spermatozoa.
Ms. Shenoy pointed out that according to the opinion of P.W.26,
Dr. M. Somashekar, who conducted the Post-mortem
examination on the deceased, death was due to asphyxia as B
a result of smothering and evidence of violent sexual intercourse
and attempted strangulation. Ms. Shenoy further submitted that
in his evidence P.W.26 had mentioned the fact that while stating
the facts about the incident, the appellant had stated that he
pushed the victim and removed her clothes, tied her hands and c
committed theft.

      27. <;>n the question of the extra-judicial confession said
to have been made by the appellant before P.W.26, Ms.
Sfienoy referred to th.e decision of this Court in M.A. Antony v.
 ~~tate of Kera/a [(2009) 6 SCC ?.20], in which, in a similar D ·
situation, the extra-judicial confession made to a doctor was
 accepted upon rejection of the defence claim that such
confession had been made in the presence of police officers;
This Court held that there was no evidence at all to suggest that
any policeman was present when the appellant made the E
confessional statement before the doctor, whereupon such
confession could have been kept out of consideration. Ms.
Shenoy submitted that even in the instant case there is nothing
on record to indicate that the confessional statement said to
have been made by the appellant before P.W.26 Dr. F
Somashekar was made in the presence of any police
personnel. There was also no suggestion in cross-examination
of P.W.26 that at the time of examination of the appellant for
evidence of sexual intercourse either any force was used or any
police personnel was present when he is said to have made G
the confessional statement toP.W.26.
     28. Ms. Shenoy then submitted that the question relating
to the reliability of an extra-judicial confession also came up for
the considerati">n of this Court in Ram Singh v. Sonia & Ors.
                                                                      H
                                                     ,
    394     SUPREME COURT REPORTS                (2011) 2 S.C.R.

A ((2007) 3 sec 1] in which case also the value of an extra-
  judicial confession made before a stranger came up for
  consideration and it was held that such a submission could not
  be accepted since in several decisions this Court had held that
  an extra-judicial confession made even to a stranger cannot be
B eschewed from consideration if the Court found it to be truthful
  and voluntarily made before a person who had no reason to
  make a false statement. Similar was the view of this Court in
   Gura Singh v. State of Rajasthan [(2001) 2 SCC 205], wherein
  it was observed that despite inherent weakness of an extra-
C judicial confession as an item of evidence, it cannot be ignored
  that such confession was made before a person who had no
   reason to state falsely and to whom it is made in the
  circumstances which tend to support the statement. Several
   other decisions on this point were referred to by Ms. Shenoy
  which did not, however, detain us, as they are in the same vein
0
   as the decisions already cited.

       29. On the question of identification which has been one
  of the main pillars of the prosecution case in order to weave a
  chain of circumstantial evidence which in clear terms pointed
E towards the guilt of the accused, the prosecution examined the ·
  minor son of the deceased, Suresh (P.W.2) and P.Ws 4, 5, 11
  and 17, who were near the place of occurrence at the relevant
  point of time. Ms. Shenoy submitted that except for P.W.2, the
  minor son of the deceased who is stated to have actually seen
F the accused in the room where the deceased was lying, all the
  other witnesses had seen the appellant at some time or the
  other before the commission of the crime. As far as P.W.2 is
  concerned, Ms. Shenoy submitted that the incident was so
  graphic that it left an indelible imprint in his mind and that the
G evidence of all the witnesses who identified the appellant
  conclusively establishes the presence of the appellant in the
  house of the deceased at the time of the commission of rape,
  murder and theft and in further establishing that Umesh Reddy,
  the appellant is the same person who introduced himself as
H Venkatesh to P.Ws.2, 4, 5, 11 and 17.
      B.A. UM ESH v. REGR.GEN.HIGH COURT OF                   395
           KARNATAKA [ALTAMAS KABIR, J.]
                       I
                       I
       30. Regarding the conducting of the Test Identification       A
  Parade by the Tehsildar, P.W.24, it was submitted that no
  irregularity could be pointed out on behalf of the defence to
, discredit the samie.
                   I

      31. The fou1h question which had been indicated by Ms.         B
 Shei'toy regarding the identification of the finger-prints taken
 from the handle of the steel almirah kept in the room of the
 deceased, where the charged offences had been committed,
 clearly establishes the presence of the appellant in the said
 room. Ms. Shenoy submitted that there was no acceptable
 explanation from the side of the defence to explain the finger      C
 prints of the appellant on the handle of the almirah which was
 in the room of the deceased. Ms. Shenoy urged that once the
 presence of the appellant was established in the room when
 and where the offences were perpetrated, the chain of
 circumstantial evidence was to a large extent almost complete       D
 and was completed with the recovery of the articles stolen from
 the room of the deceased, in the room rented to the appellant
 by Jayamma (P.W.17).

      32. Ms. Shenoy submitted that apart from the aforesaid         E
 circumstances in commission of the offences with which the
 appellant had been charged, the subsequent incidents leading
 to the arrest of the appellant could not be discounted. Ms.
 Shenoy pointed out that while the offences in relation to the
 instant case were committed on 28.2.1998, on 2.3.1998 the           F
 appellant was apprehended by local people living in Officers'
 Model Colony. From the deposition of P.W.18, A.S.I. Peenya
 Police Station, it is revealed that on receipt of a communication
 from the Police Control Room that a thief had been caught by
 the public in S.M. Road in Officers' Model Colony, he had gone      G
 there and was informed that the thief, who was later identified
 as the appellant, had tried to robe the house of one Seeba by
 forcibly entering her house and inflicting blood injuries on her.
 Ms. Shenoy submitted that the evidence of P.W.18 was duly
 corroborated by the evidence of P.W.20, Head Constable
                                                                     H
    396      SUPREME COURT REPORTS                  [2011] 2 S.C.R.


A Laxminarasappa, attached to the Vidhan Soudha security who
  was present when the accused was apprehended.

        33. Responding to the submissions made by Ms. Suri in
  support of the defence case, Ms. Shenoy submitted that the
  minor discrepancies in the evidence of P.W.2 and P.W.17
8
  relating to identification of the appellant and recovery of various
  items belonging to the deceased from the house of the
  appellant, could not discredit their evidence, on account of the
  facts that the deposition was recorded seven years after the
  incident had occurred. Ms. Shenoy submitted that in view of the
C evidence of other witnesses, minor lapses could not and did
  not take away from the case as made out by the prosecution
  and accepted by the Trial Court as well as the High Court. Ms.
  Shenoy then submitted that in any event two items of jewellery,
  viz., the gold gundas and leg chain, which were on the body of
D the deceased and had been recovered from the appellant, had
  been duly identified by P.W.2, Suresh. Lastly, on the question
  of sentence, Ms. Shenoy referred to and relied upon the various
  decisions of this Court beginning with Bachan Singh v. State
  of Punjab [(1980) 2 SCC 684] and Machhi Singh Vs. State
E of Punjab [(1983) 2 sec 47.3.0], which were subsequently
   consistently followed in the other decisions cited by Ms. Shenoy.

       34. Ms. Shenoy submitted that the constitutionality of the
  death penalty for murder provided in Section 302 l.P.C. and the
F sentencing procedure embodied in Section 354(3) of the
  Criminal Procedure Code, 1973, had been considered in the
  case of Bachan Singh Vs. State of Punjab [(1980) 2 sec
  684), on reference by a Constitution Bench of this Court and
  the constitutional validity of the imposition of death penalty under
G Section 3021.P.C. was upheld with Hon'ble Bhagwati J., giving
  a dissenting judgment. The other challenge to the
  constitutionality of Section 354(3) Cr.P.C. was also rejected,
  though certain mitigating factors were suggested as under:
          "Dr. Chitale has suggested these mitigating factors:
H
     B.A. UMESH v. REGR.GEN.HIGH COURT OF.                  397
          KARNATAKA [ALTAMAS KABIR, J.]
           Mitigating circilmstances.- In the exercise of its      A
     discretion in the above cases, the court shall take into
     account the following circumstances:

           (1) That the offenpe was committed under the
     influence of extreme mental or emotional disturbance.         8
           (2) The age of the f!Ccused. If the accused is young
     or old, he shall not be sentenced to death.

           (3) The probability that the accused would not
     commit criminal acts of violence as would constitute a        C
     continuing threat to society.
              I


          (4) The probability that the accused can be reformed
     and rehabilitated.

            The State shall by evidence prove that the accused     D
            does not satisfy the conditions (3) and (4) above.

          (5) That in the facts and circumstances of the case
     the ace.used believed that he was morally justified in
     committing the offence.                                       E

          (6) That the accused acted under the duress or
     domination'of another person.

           (7) That the condition of the accused showed that he
     was mentally defective and that the said defect impaired      F
     his capacity to appreciate the criminality of his conduct."

      The said mitigating circumstances as suggested by
 learned counsel, Dr. Chitale, were held to be relevant
'circumstances to which great weight in the determination of       G
 sentence was required to be given. It was also observed in the
 majority decision as follows :

          "There are numerous other circumstances justifying
     the passing of the lighter sentence; as there are
     countervailing circumstances of aggravation. "We cannot       H
    398      SUPREME COURT REPORTS                  [2011] 2 S.C.R.

A         obviously feed into a judicial computer all such situations
          since they are astrological imponderables in an imperfect
          and undulating society." Nonetheless, it cannot be over-
          emphasised that the scope and concept of mitigating
          factors in the area of death penalty must receive a liberal
B         and expansive construction by the courts in accord with th~
          sentencing policy writ large in Section 354(3). Judges
          should never be bloodthirsty. Hanging of murderers has
          never been too good for them. Facts and Figures, albeit
          incomplete, furnished by the Union of India, show that in
c         the past, courts have inflicted the extreme penalty with
          extreme infrequency - a fact which attests to the caution
          and compassion which they have always brought to bear
          on the exercise of their sentencing discretion in so grave
          a matter. It is, therefore, imperative to voice the concern
          that courts, aided by the broad illustrative guide-lines
D
          indicated by us, will discharge the onerous function with
          evermore scrupulous care and humane concern, directed
          along the highroad of legislative policy outlined in Section
          354(3) viz. that for persons convicted of murder, life
          imprisonment is the rule and death sentence an exception.
E         A real and abiding concern for the dignity of human life
          postulates resistance to taking a life through law's
          instrumentality. That ought not to be done save in the
           rarest of rare cases when the alternative option is
           unquestionably foreclosed.•
F
        35. Ms. Shenoy submitted that the Constitution Bench was
  fully aware of the concern for the digoity of human life and that
  taking of a life through law's instrumentality ought not to be
  resorted to except in the rarest of rare cases, when none of the
G mitigating circumstances could justify the imposition of a lesser
  penalty.
        36. Ms. Shenoy then referred to the decision of this Court
    in Machhi Singh Vs. State of Punjab [(1983) 3 SCC 470],
    wherein a Bench of Three Judges had occasion to apply the
H
    B.A. UMESH v. REGR.GEN.HIGH COURT OF                   399
         KARNATAKA [ALTAMAS KABIR, J.]
decision in Bachan Singh's case (supra) in regard to four of A
the twelve accused who were sentenced to death. This Court ·
rejected the appeals filed by the said accused and confirmed
the death sentence awarded to three of the appellants. While
confirming the death sentence awarded to the said three
accused, the Court culled out certain propositions from Bachan    s
Singh's case, as extracted hereinbelow :
          "In this background the guidelines indicated in
    Bachan Singh case will have to be culled out and applied
    to the facts of each individual case where the question of
    imposing of death sentence arises. The following              C
    propositions emerge from Bachan Singh case:

     (i)     The extreme penalty of death need not be inflicted
             except in gravest cases of extreme culpability.
                                                                  D
     (ii)    Before opting for the death penalty the
             circumstances of the 'offender' also require to be
             taken into cqnsideration along with the
             circumstances of the 'crime'.

     (iii)   Life imprisonmeht is the rule and death sentence     E
             is an exception] In other words death sentence
             must be impos~d only when life imprisonment
             appears to be an,altogether inadequate punishment
             having regard to the relevant circumstances of the
             crime, and provided, and only provided, the option   F
             to impose sentence of imprisonment for life cannot
             be conscientiously exercised having regard to the
             nature and circumstances of the crime and all the
             relevant circumstances.
                                                                  G-
     (iv)    A balance sheet of aggravating and mitigating
             circumstances has to be drawn up and in doing so
             the mitigating circumstances have to be accorded
             full weightage and a just balance has to be struck
             between (he aggravating and the mitigating           H
    400          SUPREME COURT REPORTS               [2011] 2 S.C.R.


A                 circumstances before the option is exercised."

         37. This Court then went on to observe that in order to apply
    the said guidelines the following questions could be asked and
    answered:

B               "In order to apply these guidelines inter alia the
          following questions may be asked and answered:

           (a)     Is there something uncommon about the crime
                   which renders sentence of imprisonment for life
c                  inadequate and calls for a death sentence?

           (b)     Are the circumstances of the crime such that there
                   is no alternative but to impose death sentence even
                   after according maximum weightage to the
                   mitigating circumstances which speak in favour of
D                  the offender?"

        38. Ms. Shenoy submitted that in the aforesaid case, the
  Court took into consideration the calculated and cold blooded
  murders of innocent defenceless women, children, veterans and
E newly-married couples in an exceptionally depraved, heinous,
  horrendous and gruesome manner for reprisal, as a result of
  family feud, with a view to wipe out the entire family and
  relatives of the opponent, in which circumstances only death
  sentence and not life imprisonment would be adequate.
F      39. Ms. Shenoy submitted that the propositions enunciated
  in Bf)chan Singh's case (supra) and Machhi Singh's case
  (supra) have been consistently followed in subsequent cases
  involving death sentence with minor variations with regard to
  the circumstances in which the murders were committed and
G mitigating factor, if any. For example, in the case of Holiram
  Bordoloi Vs. State of Assam [(2005) 3 SCC 793), this Court
  observed that there was nothing on record to show that there
  was any repentance by him at any point of time nor was any
  attempt made to give an explanation to the occurrence even
H while being questioned under Section 235(2) Cr.P.C., the
     B.A. UMESH v. REGR.GEN.HIGH COURT OF                     401
          KARNATAKA [ALTAMAS KABIR, J.]

accused had nothing to say at the point of sentence. It was also      A
observed that there was no spark of any kindness or
compassion and the mind of the appellant was brutal and the
entire incident would have certainly shocked the collective
conscience of the community. On the basis of such observation,
this Court held that there was no mitigating circumstance to          8
refrain from imposing the death penalty on the appellant. Ms.
Shenoy also referred to the decision of this Court in Dilip
Premnarayan Tiwari & Anr. Vs. State of Maharashtra [(2010)
1 sec 775], wherein while considering confirmation of death
sentence awarded to some of the accused, this Court had               C
observed that in a death sentence matter, it is not only the nature
of crime, but the background of the criminal, his psychology,
his social condition and his mind set for committing the offence,
were also relevant.
                                                                      D
     40. Ms. Shenoy submitted that applying the tests indicated
in Bachan Singh's case (supra), the facts of the present case
were not covered by any of the mitigating circumstances
enunciated in the two sets of cases and all subsequent cases
following the same and consequently, there could be no reason         E
for commuting the death sentence awarded to the appellant and
the appeal was, therefore, liable to be dismissed.

       41. 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 under Sections 376          F
and 392 l.P.C., we have carefully looked into the evidence
adduced by the prosecution with care and caution. That
Jayashri, 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 Suresh, the son of the deceased, came       G
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 sari was tied to a window. It has
also been established that after discovering his mother's body        H
    402    SUPREME COURT REPORTS                [2011] 2 S.C.R.

A in the above manner, Suresh went to Kusuma Shetty, a
  neighbour and told her what he had seen. On receiving the said _.
  information, Kusuma Shetty called Geetha Hegde and Lalitha
  Jaya and together they went to Jayashri's house with Suresh
  and through the window they saw Jayashri lying on the ground.
B Lalitha Jaya who was later examined as P.W.8 by the
  prosecution has deposed that she called Bylappa (P.W.7), a
  Police Constable, living in the same locality, who telephoned
  Papanna (P.W.9), the Inspecting Officer, who then came to the
  place of occurrence with Police Constable Gurudappa (P.W.6).
c It also transpires from the evidence that on receiving
  information, P.W.14, a Police Constable working in the Dogs
  Squad, P.W.16, a Police Photographer and P.W.13, a Police
  Inspector and Finger-Prints Expert, arrived at the scene of
  occurrence. Thereafter, B.N. Nyamaagowda (P.W.29), the
D Investigating Officer of the case, along with Papanna (P.W.9),
  who was a Mazahar witness, went inside the room and found
  the deceased Jayashri lying naked on the ground with
  abrasions on her body and both her hands tied in the manner
  indicated hereinbefore. In addition, it was also found, which
E finding 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 of her genitals. There were
  also strangulation marks on her neck. That the death of the
  victim was homicidal has been amply proved by the Post-
  mortem report of the Doctor (P.W.26), who was of the opinion
F that the death was due to asphyxia as a result of smothering
  and evidence of violent sexual intercourse and attempted
  strangulation. In addition, it may be added that the appellant
  Umesh was also examined by P.W.26 for evidence of sexual
  intercourse and during such examination the appellant
G confessed that. he had pushed the victim and removed her
  cloths, tied her hands and committed theft.

      42. The nature of the victim's death having been
  established to be homicidal in nature, it is now to be seen as
H to whether the circumstantial evidence on which reliance has
      B.A. UMESH v. REGR.GEN.HIGH COURT OF                     403
           KARNATAKA [ALTAMAS KABIR, J.]
  been placed by the trial Judge in convicting the appellant and       A
  was also accepted by the High Court while confirming the
  same, makes out a complete chain of events to establish
  beyond all reasonable doubt that it was the appellant and the
  appellant alone, who could have committed the offences with
  which he was charged. In this r~gard, the evidence of P.W.2,         B
  Suresh, 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 found
  the appellant, who described i himself as Venkatesh uncle,           c
  coming out of the room in whifh he and his mother lived. He
  has also narrated, without any lambiguity, the statement made
  by the appellant that his mother being possessed by the devil,
  the appellant had to tie her hands and was going to call a doctor.
  He also disclosed that while leaving the house the accused was
                                                                       0
  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 Tehsildar (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            E
  remained unshaken on cross-examination. The evidence of
  P.W.2 was corroborated by the evidence of Basvaraju (P.W.10)
  who lived in a rented house almost opposite to the rented house
  of the deceased Jayashri. He has stated that the deceased
  being a tenant in the opposite house was familiar to him and         F
  that the distance separating the two premises would be about
  30 feet. Although, described as a chance witness by the
  defence, he has explained his presence in his house at 2.00
  p.m. on 28th February, 1998, having completed his work in the
  first shift. His explanation is quite plausible and he has stated    G
  without hesitation that he had seen the accused coming out of
  the house of the deceased with a bag and proceeding towards
  the pipe line. He also identified the accused in Court as being
  the person whom he had seen coming out of Jayashri's house
  on the day of the incident at about 4.30 p.m. The said witness       H
                                                                  f
                                                             i

     404      SUPREME COURT REPORTS                 [2011) 2 S.C.R.


A    also identified the accused in the T.I. Parade conducted by the
     Tehsildar (P.W.24).

          43. The evidence of Natesh (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
  8
    too lives in a house opposite to the house of the deceased at
    a distance of about 50 feet. He too has been described as a
    chance witness by the defence, but 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
  C out of the house of the 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. Parade conducted by P.W.24. The
  D 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 the trial Court as well
    as the High Court and nothing has been shown to us on behalf
    of the appellant to disbelieve the same.
 E
         44. In fact, the identification of the appellant by P.Ws 2,
     10 and 11 is further strengthened by his identification by
     Jayamma (P.W.17) who has also deposed regarding the
     seizure of various items from the rented premises of the
 F   appellant, such as gold ornaments, suitcases, a television set
     and clothes.

         45. Manjula (P.W.22), the elder sister of the deceased
     Jayashri also identified some of the articles seized by the
     Investigating Officer from the house of the appellant, as
 G   belonging to her deceased sister Jayashri. 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.

         46. Maare Gowda (P.W.4), who had been approached by
 H   the appellant for a rented premises and who introduced the
      B:A. UMESH v. REGR.GEN.HIGH COURT OF                  405
           KARNATAKA [ALTAMAS KABIR, J.]
  appellant to Ravi (P.W.5) identified the accused Umesh Reddy A
  to be the same person who had approached him for a rented
  accommodation stating that his name was Venkatesh. He was
  also one 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 B
  accommodation in which he was staying and on the instructions
  of the police inspector, the appellant 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 c
  cash. Much the same statements were made by Ravi (P.W.5),
  the owner of the house which had been rented 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.
                                                                    D
       47. Lalitha Jaya (P.W.8) who was the landlady of the
  deceased, corroborated the prosecution story that Suresh
  (P.W.2) on seeing the body of his mother lying on the ground
  in the room rushed to Kusuma Shetty (C.W.8), who has not,
  however, beer. examined by the prosecution, who rushed to E
  P.W.8 and told her of the incident. All of them went to the house
  of the deceased and saw Jayashri ly,ihg on the ground on her
  back through the window and thereafter they went to the house
  of Bylappa (P.VV.7) and informed him about the incident.
                                                                    F
.      48. All th~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 appellant committed the offences with which he was G
  charged. The trial Court has also relied upon the extra-judicial
  confession made by the appellant to Dr. Somashekar (P.W.26),
  who examined him as to his sexual capacity, to the effect that
  he had pushed down the victim, removed her clothes, tied her
  hands and committed theft in the ~puse. ·
                                                                   H
    406     SUPREME COURT REPORTS                 [2011] 2 S.C.R.

A      49. The aforesaid position is further strengthened by the
  Forensic Report and that of the Finger-Print Expert to establish
  that the finger prints which had been lifted by P.W.13 from the
  handle of the steel almirah in the room, matched the finger print
  of the appellant which clearly established his presence inside
B the house of the deceased. The explanation attempted to be
  given for the presence of the finger prints on the handle of the
  almirah situated inside the room of the deceased does not
  inspire any confidence whatsoever. In a way, it is the said
  evidence which scientifically establishes beyond doubt that the
c apJkllant was present in the room in which the deceased was
  found after her death and had been identified as such not only
  by P.W.2, who actually saw him in the house immediately after
  Jayashri was murdered, but also by P.Ws 10 and 11, who saw
  him coming out of the house at the relevant point of time with
  the bag in his hand. The finger print of the appellant found on
0
  the handle of the almirah in the room of the deceased proves
  his presence in the house of the deceased and that he and no
  other caused Jayashri's death after having violent sexual
  intercourse with her against her will.

E      50. Apart from causing the death of the victim, the
  evidence also points to the commission of rape of the 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
F deceased. The presence of semen-like material in her vagina,
  which was found during the Post-mortem examination, was
  collected and sent for micro-biological examination and showed
  the presence of sperms. The presence of spermatozoa in the
  vaginal smear which was sent for micro-biological examination
G and the presence of blood stains at the vaginal outlet together
  with laceration of the vagina from the vaginal outlet on the
  posterior wall establishes and confirms the charge of violent
  sexual intercourse, viz., rape. In addition to the above, the
  examination of the accused by P.W.26, the doctor, who
H conducted the Post-mortem examination, discloses laceration
     · B.A. UMESH v. REGR.GEN.HIGH COURT OF                     407
            KARNATAKA [ALTAMAS KABIR, J.]
 on the inner aspect of the upper lip and inner abrasions in both       A
 lips, scratch 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 intercourse with the victim against           B
 her wishes.

     51. Even after committing the above-mentioned offences,
the appellant robed various articles, including jewellery and a
VCR set from the house of the deceased, and even made up                C_
a suitable story about his presence in the house in order to
impress a young child who happened to notice him as he was
leaving the house. The remorseless attitude of the appellant is
further evident from the fact that after having committed such
heinous offences on 28.2.1998, within two days on 2.3.1998
                1
he attempted a similar crime in the house of one Seeba and              D
was caught by the public while trying to escape, as evidenced
by P.Ws 18 and 20.

      52. Ms. Suri has raised certain questions relating to the         1



identification of the appellant by P.Ws 2, 10, 11 and 17. It has        E
been submitted that the picture of the appellant had been               1       -



published in the newspapers after the incident. There may have
been some substance in the aforesaid submission had it not
been for the fact that being the immediate neighbours of the
appellant, P.Ws 10 and 11 had occasion to see the appellant             IF
earlier. As fa~ as P.\IV.~7 is concerned, she was the appellant's
landlady at the relevant point of time. The decision in Musheer
Khan's case (supra) cited by Ms. Suri is npt, therefore, of any
help to the appellant's case.

     53. On the question of recovery of M.Os.2 to 23 from the           G
rented premises of the appellant, though an attempt has been
made to discredit the role of P.W.5 Ravi as a panch witness,
we see no reason to disbelieve the same since such recovery
was also witnessed by P.W.22, Manjula, the sister of the
deceased, who also identified the recovered articles.                   H
    408      SUPREME COURT REPORTS                [2011) 2 S.C.R.


A      54. 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
B that such a procedure was available under the Karnataka.
  Police Manual read with Section 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 the deceased matched the right finger print of the appellant.
c In that view of the matter, the submission of Ms. Suri on this
  point must also be rejected.

           55. We, therefore, have no hesitation in confirming the
      conviction of the Appellant under Sections 376, 392 and 302
    · IPC.
D
       56. On the question of sentence we are satisfied that the
  extreme depravity with which the offences were committed and
  the merciless manner in which death was inflicted on the victim,
  brings it within the category of rarest of rare cases which merits
E the death penalty, ::ts awarded by the Trial Court and confirmed
  by the High Court. None of the mitigating factors as were
  indicated by this Court in Bachan Singh's case (supra) or in
  Machhi Singh's case (supra) are present in the facts of the
  instant case. The appellant even made up a story as to his
F presence in the house on seeing P.W.2 Suresh, who had come
  there in the meantime. Apart from the above, it is clear from
  the recoveries made from his house that this was not the first
  time that he had committed crimes in other premises also,
  before he was finally caught by the public two days after the
G present incident, while trying to escape from the house of one
  Seeba where he made a similar attempt to rob and assault her
  and in the process causing injuries to her. As has been
  indicated 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. The offences
H
       B.A. UMESH v. REGR.GEN.HIGH COURT OF                   409
            KARNATAKA [ALTAMAS KABIR, J.]
committed by the appellant were neither under duress nor on          A
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, inasmuch as, within two days
of the incident he was caught by the local public while
committing an offence of a similar type in the house of one          B
Seeba.

     57. In such circumstances, we do not think that this is a fit
case which merits any interference. The Appeals are,
accordingly, dismissed and the death sentence awarded to the
Appellant is also confirmed. Steps may, therefore, be taken to       C
carry out the sentence.

R.P.                                       Appeals dismissed.