Holding

The conviction under Sections 302 and 392 IPC stands, but the death sentence is commuted to life imprisonment as the case does not meet the "rarest of rare" criterion.

Summary

Earabhadrappa, alias Krishnappa, was employed as a domestic servant in Karnataka and on the night of 21-22 March 1979 strangulated his employer's wife, Bachamma, and robbed her of gold ornaments and silk sarees. He absconded and was apprehended a year later, after which he made a statement that led police to recover the stolen items, admissible under Section 27 of the Indian Evidence Act. He was convicted under Sections 302 and 392 of the Indian Penal Code and sentenced to death and ten years' rigorous imprisonment; the High Court affirmed the conviction and sentence. On appeal, the Supreme Court examined whether the circumstantial evidence, the admissibility of the statement, and the presumption under Section 114 (illustration a) sufficiently proved murder and robbery, and whether the death penalty was warranted under the "rarest of rare" doctrine. The Court held that the conviction was supported by the evidence but the case did not satisfy the "rarest of rare" test, thus commuting the death sentence to life imprisonment while dismissing the appeal.

Issues considered

The admissibility of the accused's statement under Section 27 of the Indian Evidence Act.
Whether the circumstantial evidence and the presumption under Section 114( a) of the Evidence Act are sufficient to sustain a conviction for murder under Section 302 IPC.
Whether the death penalty is appropriate in the present case under the "rarest of rare" principle laid down in Bachan Singh v. State of Punjab.

Legislation cited

Indian Evidence Act, 1872s. 114, s. 171, s. 27
Indian Penal Code, 1860s. 302, s. 392, s. 411

Subjects

circumstantial evidenceSection 27 Indian Evidence ActSection 114 presumptionmurderrobberydeath penaltyrarest of rare doctrinecommutationconvictionIndian Penal Code

Judgment

552

EARABHADRAPPA ALIAS KRISHNAPPA
A
v.

STATE OF KARNATAKA

March 11, 1983
B
(A.P. SEN AND E.S. VENKATARAMIAH, JJ.j

A. Evidence-Circumstantial evi<Jence-Nature oi proof requiid for
conclusion of guilt and conviction.
c B. Indian Evidence Act-Section l71 conditions pre-requistite, therefor-
' Fact' and "Fact discovered" explained.

C. Presumption under section 114 of the Indian Evidence Act-Nature
of presumption under illustration (a) explained.

D D. Sentencing and duty of the Court in appropriate cases of conviction-
lnterference with sentence in criminal appeal by the Sup,veme
Court-Binding nature of Article 141 of the Constitution.

The appellant, Earabhadrappa hailing from- village Mattakur, under the
false name of Krishnappa and with a false address obtained employment of
service as a domestic servant under PW 3 Makrappa; the husband of the

' .
E deceased Bacharruna, who was found murdered by strangulation on the night
between March 21-22, 1979 after having been robbed of her jewellery, clothes,
etc. Based on circumstantial evidence, the appellant, who was found mis-
sing right from the early hours of the 22nd March, 1979 and who was apprehend-
ed a ·year later on March 29, 1980, was charged with and convicted for the
offences under Sections 302, 392 IPC respectively. He was sentenced to undergo
F rigorous imprisonment for a term of 10 years under section 392 IPC and to
death under Section 302. In appeal, the High Court confirmed both the con-
viction and sentences imposed upon him. Hence the appeal by-.special leave.
Dismissing the appeal and modifying the sentence, the Court.

HELD: 1.1 To sustain a charg~ under s. 302 of the Indian Penal Code,
the mere fact that the accused made a statement leading to the discovery of the
G _stolen articles under s. 27 of the Evidence Act, by itself is not sufficient.
There must be something more to connect the accused with the commisson of •
the offence. The circumstances relied upon by the prosecution in tl\e instant
case led to no other inference than that of guilt of the accused as murder and
robbery are proved to have been integral parts of one and the same transaction
and therefore the presumption arising under illustration (a) to s. 1J4 of the
H Evidence Act is that not only the accused committed the murder of the deceas-
ed j_ but also committed robbery of her gold ornaments which formed part of
the same transaction. The prosecution had led sufficient evidence tO <;onneq:
the accused with the conrmi.,ion of the crime. [561 G-Hl
EARABHADRAl'PA v. KARNATAJ{A 553

1.2 .For the applicability of s. 27 of the Evidence Act, two conditions are
pre-requisite, viz: (1) Infonnation must be such _as has caused discovery of ~,
the fact, and (2) The information must "relate distinctly" to tlie fact discovered."
Under s. 27, only so much of the information as distinctly relates to the facts
really thereby discovered is admissible. The word 1 'fact" means some concrete
or material fact to which the information directly relates. (549A, 5SOB-C]

Pulukuri Kottayya v. Empetor, LR [1947] IA 65 ; Jajfer Hussein Dastgir
V. State of Maharashtra, [1970] 2 S.C.R. 332, referred to. IJ
2.1 The nature of presumption under illustration (a) to s. 114 of the
Evidence Act from recent and unexplained possession must depend upon the
nature of the evidence adduced. As to the meaning of "recent posses&ion•!, it
was observed: No fixed time limit can be laid down to ·determine whether
possession is recent or otherwise and each case must be judged on _its own facts. C·
The question as to what amounts to recent possession sufficient to justify the
presumption of guilt varies according as the stolen article is or is not caJculat·
<0d to pass readily from hand to hand. The fact that a period of one year had
elapsed between the commission of the crime and the recovery of the orna·
ments on a statement made by the accused leading to their discovery un'1er
s. 27 of the Evidence Act immediately upon his being apprehended by the
police, cannot be said to be too long particularly when the .accused had been V
absconding during that period and the stolen articies were such as were-not
likely to pass readily from hand to hand. There was no lapse of time between
the date of his arrest and the recovery of the stolen property. The accused had
no satisfactory explanation to offer for his possession thereof. On ~e
contrary, he denied that the stolen property was recovered by him. The false
·denial by itself is an incriminating circumstance. [56 H, 562 A-E] E
. _) 3. In Bachan Singh V. State of Punjab, [1980] 2 SCC 684, the Supreme
Co!.!rt, moved by compassionate sentiments of human feelings has ruled that
sentence- of death should not be passed except in the "rarest of rare" cases.
Th~ result now is that capital punishment is seldom epiployed even though
it may be a c6me against the socij:ty and the brutality of the crime shocks
judicial conscience. The test laid down in Bachan Singh's case is unfortuna· F
tely not fulfilled in the instant case. That being so, the Court is constrained
to commute the sentence of death passed on the appellant into one for
imprisonment for life. [562 F-H, 563 A]

Observation of Dissent

( A sentence or pattern of sentence which fails to take due account of the G
gravity of the offence can seriously undermine respect for law. It is the duty of
the court to impose a proper punishment depending upon the degree
of criminality and desirability to impose such punishment as a- measure of
social necessity as a means of deterring other potential offenders. ·Fail~e to
impose death sentence in such grave cases where it is a crime against society- ii
particularly in cases of murders committed with extreme brutality will brilj$ Pl"
to naught the sentence of death providecl under Section 302 of the Penal Code.]
~563 A-BJ
--
554 SUPREME COURT REPORTS . [1983] 2 s.c.R.

CRIMlNAL APPELLATE JURISDICTION : Criminal Appeal No. 669
A of 1982..

Appeal by Special leave from the judgment and order dated
the 29th October, 1981 of the Karnataka High Court in Cr!. Appeal
No. 241 of 1981

B• B.D. Sharma (A.C) for the AppeJlant.

M. Veerappa and Ashok Kumar Sharma for the Respondent.

The Judgment of the Court was delivered by

c SEN, 1. AppeJlant Earabhadrappa @ Krishnappa is under
sentence of death and this appeal by special leave is directed against
the judgment of the High court of Karnataka dated October 29,
1981. The Sessions Judge, Kolar by his judgment dated March 21,
1981 convicted the appellant under s. 302 of the Indian Penal Code
f~r having committed the murder of one Smt. Bachamma, wife of
D "£?.W. 3 Makrappa and sentenced him to death. On reference,'the High
Court has uphe Id the conviction of the appellant under s. 302 of the
Indian Penal Code and confirmed the death sentence passed on him.
The appellant has also been convicted by the learned Sessions Judge
under s. 302 of the Indian P.enal Code for having robbed the ·
E deceased· of her gold ornaments and clothes and sentenced him to
undergo rigorous imprisonment for a term of 10 years. ".
Upon the evidence presented at the trial it transpired that on
the night between March 21 and 22, 1979 the deceased Smt.
Bachamma was throttled to death at her house in village Mallur
F and relieved of her gold ornaments. On the night in question, the
deceased Smt. Bachamma as usual served dinner to the family
members. After taking his meals, P.W.3 went upstairs to his
bed-room, her mother-in-law P. W.2 Smt. Bayamma went to the
'Kana' to keep a vigil while the deceased slept in the hall adjoining
G· the kitchen and her son P. W.4 G.M. Parkash slept in the courtyard
of the house. The appellant who had recently been employed as a
servent by P. W. 3. <lept in a room on the ground floor where the silk
cocoons used to be reared and kept. On the 22nd morning at about
6 a.m when P.W.4 went to_ wake up his mother he found that she
H was lying dead and he therefore went upstairs and called his father
P.W. 3. They saw that the deceased had been strangulated to death
and relieved of her ornament. Her gold mangalsutra and gold-rope
-
chain were missing so also the gold nose-ring and gold ear-rings. On
EARABHADRAPPA v. KARNATAKA (Sen, J.) SSS
0

the right side of the bed was lying the screw of the missing gold
nose-ring. There was also lying a towel (M.O. I) which had been A
given by P.W. 3 to the appellant for his use, and apparently the
deceased has been strangulated with the towel. The iron safe' and
almirah kept in the hall were found open and bunch of keys which
·the deceased carried with her was found missing. All the jewellery
·and cash of Rs. 1700/- kept in the iron safe and six silk sarees kept B
in the almirah were also found missing. There was a search made
for the appellent but he was not to be found either in the house or
in the village and he had therefore absconded with the jewellery and
valuables.

Intelligence report received by P.W. 26 Abdul Mazeed, Circle c
Inspector of Police· who had taken over the investigation from
· P.W. 25 Sreenivasa Rao, Station Officer Shidalaghatta on 28 March
1980 revealed that the appellant was seen moving in Hosakote ,and
Anekal Taluks and accordingly P.W. 26 along with his staff searched
for .the appellant in both the taluks but he could not be found, and
tl).erefore he encamped at Ailekal on that day. On "March 29, 19SO
he got definite information that the appellant was seen in village
Hosahally in Ho1akote Taluk and was able to apprehend him at
that village at about 2 p,m. On being taken into custody, the
appellant made a statement Ex. P-35 .leading to the discovery of the
ornaments and clothes belonging to the deceased from several places. E
• J He first led P.W. 2~ to the house of his sister P.W. 8 Smt. Yallamma
in village Gudisagarapelly leading to the recovery of four silk sarees
(M. Os. 11 to 14) which were seized under seizure memo Ex. P-4.
From that place, he took him to village Mattakur, from where he
hails, to the house of one Dasappa leading to the recovery of the
screw of the missing gold nose-ring (M.O. 5) which was seized under F
seizure memo Ex. P-7. Thereafter, he took P.W. 26 to the house of
a
P.W. 12 Guruvareddy leading to the recovery of silk saree (M.O.
15) which was seized under seizure memo Ex. P-5 and then to the
house. of P.W. 13 Narayanareddy leading to the recovery of the gold
chain (M.O. 6) and a pair of gold bangles (M.Os. 7 & 8) which were G
seized under seizure memo Ex. P-6. The very day he took P.W. 26 to
the house of P.W. 15 Chinnamma in Village Sollepura leading t() the
recovery of a silk saree (M.0.10) which was seized under seizure
memo Ex. P-8. On the next day i.e. on the 30th the appellant took
._, P.W. 26 to the house of P.W. 21 Rainachari in village Hosur who H
led them to the shop of P.W. 22 Palaniyachar leading to the recovery
Qf a pair of gold earrings (M.Os. 3 & 4) and a gold in~ot (M.O. 9)
SUPREME COURT ,REPORT [1983] 2 S.C.R.

which were seized under seizure memo Ex. P-15. The seized
A articles have all been identified by P.W., 3 Makrappa and his mother
P.W. 2 Smt. Bayamma and son P.W. 4. G.M. Prakash as belonging ,~ ,
to the deceased.

The appellant abjured his guilt and denied the commission of
the alleged offence satating that he had been falsely implicated.
He also denied that he ever made the statement Ex. P-35 or that the
stolen articles were recovered as a direct consequence to such
atatement.

In cases in which the evidence is purely of a circumstantial
c nature, the facts and circumstances from which the conclusion of
guilt is sought to be drawn must be fully established beyond any
reasonable doubt and the fact and circumstances should not only be
consistent with the guilt of the accused but they must be in their
effect as to be entirely incompatible with the innocence of the accused
and must exclude every reasonable hypothesis consistent with his
D innocence. The chain of circumstances brought out by the
prosecution are these :

1. The appellant who hails from village Mattakur was
a stranger to village Mallur ostensibly in search of
E employment. He falsely stated his name to be
Krishnappa and gave a wrong address stating that he ,, .
belonged to a nearby village. The securing of
employment by giving out false name and wrong
address shows that he had some oblique motive in
his mind. He obtained employment with p.w. 3 and
F gained his confidence and was allowed to sleep in a
room on the ground floor where the silk cocoons
were kept. He thus became familiar with the places
where the inmates of the house used to sleep and
where the jewellery, cash and, other valuable
G belongings used to be kept i.e. in the iron safe and
almirah kept in the hall adjoining the kitchen.

2. It appears that the appellant had preplanned the
commission of robbery. Earlier in the evening he
went to P.W. 6 Narayanappa and borrowed Rs. 2
H and thereafter went ·to the toddy shop of P. W. 7
Smt. Anasuyamma and took liquor. On the night
in question he reached the 'kana' at about 9 p.m.
liARABl!ADRAPPA V. ~ATAKA (Sen, J.) 557
and was reprimanded by P.W. 2 for being late.
Upon reaching the house he went upstairs in an A
inebriated state and told P.W. 3 that he no longer
wanted to serve and he should settle his accounts.
P.W. 3 told him to come in the morning and take
his wages. It therefore appears that the appellant
had made up his mind to leave the village.
B
3. On the next morning i.e. on the 22nd at about 6 a.m.
it was discovered that the deceased Smt. Bachamma
had been strangulated to death. The gold ornaments
on her person and in the iron safe had been stolen.
There was a search made for the appellant but he c
was not to be found anywhere. Near the dead body
of the deceased was lying the blood-stained towel
(M.O. I) given by P.W. 3 to the appellant for his
use with which the deceased had apparently been
strangulated. The appellant had therefore absconded
from the scene of occurrence after committing the D
murder and robbery.

4. After the appellant had suddenly disappeared from
the house of P.W. 3 with the gold ornaments and
other valuables, there was a frantic search made by E
•..) P.W. 25 Sreenivasa Rao and P.W. 26 Abdul
Mazeed at various places and he was absconding till
March 29, 1980 until he was apprehended by P.W. 26
at village Hosahally in Hosakote taluk at abont
2 p.m. On being arrested after a year of the incident
on March 29, 1980, the appellant made the statement F
Ex. P-35 leading to the recovery of some of the
stolen gold ornaments of the deceased and her six
silk sarees from different places and they have all
been identified by P.Ws. 2, 3 and 4 as belonging to
the deceased. G
5. The appellant falsely denied the recoveries and conld
offer no explanation for his possession of the stolen
articles.
H
6. It appeirs from the prosecution evidence that after
the commission of the murder and robbery, the
appellant had with him )he incriminating articles and
SUPREME COURT REPORTS [1983) 2 S.C.R.

taken them to his native place Mattakur where he
disposed them of to several persons. The testimony
of P.W. 26 reveals that in consequence of· the infor-
mation given by the appellant he recovered the miss-
ing screw of the gold nose ring (M.0.5) from one
Dasappa in village Mattakur, that of P.W,12 Guruva-
reddy that appellant had sold to him the silk saree
B (M.0.15) for Rs. 150/-, and that of P.W.13
Narayanareddy discloses that the appellant had sold
to him a gold rope chain (M.0.6) and a pair of gold
bangles (M.Os. 7&8) for Rs. 2000/-. The testimony
of P.W.8, Smt. Yallamma, sister of the appellnt,
hailing from village Gudisagarapally show that the
appellant had given her four sillk sarees (M.Os.11 to
14), and that of P.W.15 Smt. Chinnamma of village
Sollepura, who was known to the appellant from
before, shows that the appellant gave her the silk
II
saree for Re. 1/- when she refused to take his gratis.
D The testimony of P.W. 21 Ramachari of village
Hosur shows that appellant brought with him a pair
of gold ear-rings and a gold ingot and wanted to sell
them saying that he was hard-pressed. This witness
took him to P.W. 22 Palaniyacbar and the appellant
E sold the gold ingot (M.0.9) for Rs. 330/- and a pair
of gold ear-rings (M.Os. 3&4) for Rs. 500/-. L'

From this evidence it is apparent that the appellant while he was
absconding moved from place to place trying to dispose of the stolen
property to various persons.
F
The learned Sessions Judge as well as· the High Court have
come to the conclusion that the circumstances alleged have been fully
proved and they are consistent only with the hypothesis of the guilt of
the accused. We are inclined to agree both with their conclusion and
the reasoning. The chain of circumtances set out above establishes the
guilt of the appellant beyond all reasonable doubt.

' There is no controversy that the statement made by the appel-
lant Ex. P-35 is admissible under s. 27 of the Evidence Act. Under
s. 27 only so much of the information as distinctly relates to the facts
really thereby discovered is admissible. The word 'fact' means some
conc.rete or material fact to which the information directly relates. As
'
f
· IWWltlJ\lJRAPPA: v. KARNA'rAKA (Sen, J.) · SS9

l explained by Sir John Beaull\ont in Pulukuri Kottaya v. Emperor (1) :
A
"It is fallacious to treat the 'fact discovered' within the
section as equivalent to the object produced : the· fact
discovered embraces the place from which the object is
produced, and the knowledge of the accused as to this,
and the information given must relate distinctly to this
fact." B
For the applicability of s. 27 therefore two condition~ are pre-
requisite, namely (1) the information must be such as has caused dis-
covery of the fact; and (2) the information must 'relate distinctly' to
the fact discovered. In the present case, there was a suggestion during C
the trial that P.W. 26 had prior knowledge from other sources that
the incriminating articles were concealed at certain places and that
statement Ex. P-35 was prepared after the recoveries had been
made and therefore there was no 'fact discovered' within· the mean-
ing of s. 27 of the Evidence Act. We need not dilate on the question
because there was no suggestion made to P.W. 26 during his cross• D
examination that he had known the places where the incriminating
articles were kept. That being so, the statement made by the appel-
lant Ex. P-35 is clearly admissible in evidence.

In Jajfer Hussein Dastgir v. State of Maharasetra, (') the portion
of the the statement with reference to which this question arose read E
•j as follows :
"I wiil point out one Gaddi alias Ramsingh of Delhi at
Bombay Central Railway Station at III Class Waiting Hall
to whom J have given a Packet containing diamonds of
different sizes more than 200 in number." F
The only question ·for decision in that case before the
Court was whether the aforesaid statement made by the accus.ed
was admissible in evidence by virtue of s. 27 of the Evidence
Act, the diamonds having been found with the person named. In the
facts of that case the Court came to the conclusion that the police G
had already known that the diamonds were with the preson named by
tb,e accused with the result that there was no fact discovered by the
police as a result of the statement made by the accused. However, it
, was held clearly that, but for such knowledge of the police, the afore-
said statemen! of the accused would have beeri admissible in evidence. H
(I) LR [1947] 74 IA 65.
(2) [1970] 2 SCR 332.
SUPREME COURT REPORTS [1983] 2 s.c.R.

In tile present case, some of the material portions in the state·
A ment Ex. P-35 which distinctly relate to the fact discovered read :

"If! am taken to Gudisagarapally, I shall get the four silk
sarees."

At village Gudisagarapally the appellant took P.W. 26 to the
house of his sister P.W. 8 Smt. Yallamma who produced four silk
sarees (M.Os. 11 to 14) which were seized under seizure memo Ex.
· P-4. P.W. 8 Smt. Yallamma states that she is the sister of the
appellant and that he had given to her the four silk sarees. It was
· suggested that the police had not only planted P.W. 8 as a sister of
c tll.e appellant but also the four silk sarees in question, but there is
no basis for this assertion. Then the statement Ex. P-35 recites:

"If I am taken to native place Mattakur, I shall get one
gold nose ring without screw ......... one silk saree ........ .
one gold rope chain and one pair of gold ear rings."

At village Mattakur from where he hails, the appellant took
P.W. 26 to the house of one Dasappa leading to the recovery of the
screw of the missing gold nose ring (M.O. 5) which was seized under
seizure memo Ex. P-7. Thereafter, he took P.)V. 26 to the house
E ofP.W. 12 Guruvareddy leading to the recovery of a silk Saree
· (M.O. 15) which was seized under seizure memo Ex. P-5. He then
took P.W. 26 to the house of P.W. 13 Narayanareddy leading to the '- ·
recovery of a! gold rope chain (M.O. 6) and a pair of gold bangles
(MOs. 7&8) which were seized under seizure memo Ex. P-6. The
,., prosecution could not examine Dasappa because he was dead during 'r
r the trial. P.W. 12 stated that the appellant had sold him a silk saree
for Rs. 150 while P.W. 13 stated that he had so'd him a gold rope
· chain and a pair of gold bangles for Rs. 2000/-. The statement
l!x. P-35 conta;ns similar recitals leading to the recovery of the other
· inctimillating articles, viz. (1) A silk saree (M.0.10) given by the
· appellant to P.W. 15 Smt. Chinnamma of village Sollepura whom he
G ktrew from before, for a token price of Re. 1/ - ; (2) A pair of gold
eat rfogs (M.Os. 3&4) and a gold ingot (M.0.9) from P. W. 22 Palani·
. yacfiar wliich be had purchased from the appellant for Rs. 830.

Apart from the question of sentence, two other contentions are
raised, namely : (I) There is no proper identification that the seized
ornaments belonged to the deceased Smt. Bachamma; and 12' the
presumption arising under illustration (a) to s. 114 of the Evidence

•
llAlWlltADRAPPA v. RARNA'fAKA (Sen, J,)

Act, looking to the long lapse of time between the commission of
murder and robbery and th~ discovery of the stolen articles, should A

' -- be that the appellant was merely a receiver of the stolen articles and
therefore guilty of an offence punishable under s. 411 of the Indian
Penal Code and not that he was guitly of culpable homicide amount-
ing to murder punishable under s. 302 as well. We are afraid, none
of these contentions can prevail. B

Our attention was drawn to the testimony of P.W. 13
Narayanareddy who, duriug his cross-examination, stated that orna-
+ ments similar to the gold rope chain and the pair of gold bangles
were available everywhere and that other ornaments were also in his C
house. From this it is sought to be argued that the seized ornaments
cannot be treated to be stolen property as they are ordinary ornaments
in common use. Nothing really turns on this because P.W. 2 Smt.
Bayamma, mother-in-law of the deceased, her husband P.W. 13
Makarappa and son P.W. 4 G.M. Prakash have categorically stated
that the seized ornaments belonged to the deceased Smt. Bachamma. D
There is no reason why the testimony of these witnesses should not
be relied upon particularly when P.W. 2 Smt, Baymma was not cross-
examined.at all as regards her identification of the seized ornaments
and clothes as b'longing to the deceased. Even if the seized orna-
ments could be treated to be ornaments in common use, this witness
could never make a mistake in identifying the seized six silk sarees E
'J (M.Os. 10 to 15). It is a matter of common knowledge that ladies
have an uncanny sense of identifying their own belongings, parti-
cularly articles of personal use in the family. That apart, the descrip-
tion of the silk sarees in question shows that they were expensive
sarees with distinctive designs .. There is no merit in the contention F
that the testimony of these witnesses as regards the identity of the
seized articles to be stolen property cannot be relied upon for want of
prior test identification. There is no such legal requirement.

This is a case where murder and robbery are proved to have been
intergral parts of one and the same transaction and therefore the G
presumption arising under illustration (a) to s. 114 of the Evidence
Act is that not only the appellant committed the murder of the
deceased but also committed robbery of her gold· ornaments which
form part of the same transaction. The prosecution has Jed
sufficient evidence to connect the appellant with the commission of H
the crime. The sudden disappearance of the appellant from
the house of P.W.3 on the morning of March 22, 1979 when
-562 SUPREME colJRl' REPORTS [1983) 2 s.c.R

it was discovered that the deceased · had been strangulated
A to death and relieved of her gold ornaments, coupled with
the circumstance that he was absconding for a period of over one
year till he was apprehended by P.W. 26 at village Hosahally
on March 29, 1980, taken with the circumstance that he made the
statement Ex. P-35 immediately upon his arrest leading to the dis-
B covery of the stolen articles, mnst necessarily raise the inference that
the appellant alone and no one else was guilty of having committed
the murder of the deceased and robbery of her gold ornaments. The
appellant_ had no satisfactory explanation to offer for his possession
of the stolen property. On the contrary, he denied that the stolen
property was recovered from him. The false denial by itself is au
c incriminating circumstance. The nature of presumption under illus-
ration ta) to s. 114 must depend upon the nature of the evidence
adduced. No fixed time limit can be laid down to determine whether
possession is recent or otherwise and each case must be judged on its
own facts. The question as to what amounts to recent possession
sufficient to justify the presumption of guilt varies according as the
D
stolen article is or is not calculated to pass readily from hand to "
hand. If the stolen articles were such as were not likely to pass readily
from hand to hand, the period of one year that elapsed cannot be
said to be too long particulary when the appellant had been
absconding during that period. There was no lapse of time between
E the date of his arrest and the recovery of the stolen property.

.... .
Finally, there remains the question of sentence, it was cruel
hand of destiny that the deceased Smt. Bachamma met a
violent end by being strangulated to death by the appellant who
F. betrayed the trust of his master p.w. 3 and committed her pre-
planned cold-blooded murder for greed in achieving his object
of committing• robbery of the gold ornaments on her person and
in ransacking the iron safe and the almirah kept in her bedroom
on· the fateful night. The appellant was guilty of a heinous
crime and deserves the extreme penalty. But we are bound by
G the rule laid down in Bnchan Singh v. State of Punjab(1) where the
Court moved by compassionate sentiments of human feelings has.
ruled that sentence of death should not be passed except in the
'rarest of the rare' cases. The result now is that capital punish-
H ment is seldom employed even though it may be a crime against
the society and the brutality of the crime shocks the judicial
(1) 1198012 sec 684.

•
----
BAlWlllADRAPPA v. KAl\ANATAKA (Sen, J.) 563

conscience. A sentence or pattern of sentence with fails to take due
account of the gravity of the offence ca11 seriously undermine respect A

·-· for law. It is the duty of the Court to impose a proper punishment
depending upon the degree of criminality and desirablitity to impose
such punishment as a measure of social necessity as a means of
deterring other potential offenders. Failure to impose a death sen•
tence in such grave cases where it is a crime against the society B
particularly in cases of murders committed with extreme brutality-will
bring to naught the sentence of death provided by s. 302 of the Indian
Penal Code. The test laid down in Bachan Singh's case (supra) is
unfortunately not fulfilled in the instant case. Left with no other alter-
native, we are constranied to commute the sentence of death passed
on the appellant into one for imprisonment for life. C
Subject to this modification in the sentence, the appeal fails
and is dismissed.

[S. R. Appeal dismissed.

..
~

i