Holding

The conviction is upheld and the death sentence is commuted to life imprisonment, with no remission before 30 years, as the evidence establishes guilt and mitigating factors outweigh the aggravations.

Summary

The appellant, Irappa Siddappa Murgannavar, was convicted of raping and murdering a five‑year‑old girl, R, and disposing of her body in a stream. The prosecution relied on eyewitness accounts, the appellant’s own disclosure statement, and post‑mortem evidence to establish the crime. The Supreme Court held that the chain of circumstances satisfied the five‑fold test for conviction and that inconsistencies in witness testimony did not create reasonable doubt. While the Court affirmed the conviction under IPC sections 302, 376, 364, 366A and 201, it commuted the death sentence to life imprisonment, noting mitigating factors such as the appellant’s young age, lack of prior record, satisfactory conduct in prison, and the non‑premeditated nature of the crime. The Court also found that the appellant had been given adequate opportunity to be heard on sentencing, so there was no violation of Section 235(2) of the CrPC. The death sentence was therefore reduced to life imprisonment with a stipulation that no remission be granted before 30 years of actual imprisonment.

Issues considered

The prosecution proved guilt beyond reasonable doubt for offences under IPC sections 302, 376, 364, 366A and 201.
Whether the death penalty was warranted under the 'rarest of the rare' doctrine.
Whether mitigating circumstances justified commuting the death sentence to life imprisonment.
Whether the High Court violated Section 235(2) of the CrPC by not hearing the appellant separately on sentencing.
The impact of witness contradictions and alleged planted witnesses on the conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 235(2)
Indian Penal Code, 1860s. 201, s. 302, s. 364, s. 366A, s. 376

Subjects

rapemurderdeath penaltycommutationrarest of the rareSection 235(2) CrPCmitigating factorschain of evidencepost‑mortemforensic evidence

Judgment

[2021] 11 S.C.R. 51 51

IRAPPA SIDDAPPA MURGANNAVAR A
v.
STATE OF KARNATAKA
(Criminal Appeal Nos. 1473-1474 of 2017)
NOVEMBER 08, 2021 B
[L. NAGESWARA RAO, SANJIV KHANNA AND
B. R. GAVAI, JJ.]
Penal Code, 1860: ss. 302, 376, 364, 366A and 201 – Rape
and murder – Prosecution case that accused raped and murdered a
C
five year old girl, and then disposed of her body, tied in a gunny
bag, into the stream – Conviction and sentence for commission of
offence u/s. 302, 376, 364, 366A and 201 – Upheld by the High
Court – On appeal, held: On overall view of the evidence and witness
statements adduced by the prosecution, the chain of circumstances
affirmatively establishes the guilt of the appellant – Contradictions D
and inconsistencies highlighted in the prosecution’s case, do not
create a reasonable doubt – Circumstances relied upon are fully
established – They are conclusive in nature and tendency – Chain
of evidence is so complete as not to leave any reasonable ground
for conclusion consistent with the innocence of the appellant – Facts
E
established consistent only with the hypothesis of the guilt of the
accused and exclude every hypothesis except the one proved – Thus,
the order of the courts below convicting the appellant for offences
u/s. 302, 376, 364, 366A and 201 upheld.
Sentence/Sentencing: Death sentence – Imposition of –
F
Commission of rape and murder of 5 year old – Conviction and
sentence of the appellant for the offences u/ss. 302, 376, 364, 366A
and 201 – Commutation of sentence of death imposed – Held: There
is hope for reformation and rehabilitation – There are sufficient
mitigating factors to commute the sentence of death imposed by the
courts below into imprisonment for life – Young age of the appellant G
at the time of commission of the offence (23/25 years), his weak
socio-economic background, absence of any criminal antecedents,
non pre-meditated nature of the crime, and that the accused has
spent nearly 10 years 10 months in prison are other extenuating
factors – No doubt the appellant has committed an abhorrent crime,
H
51
52 SUPREME COURT REPORTS [2021] 11 S.C.R.

A incarceration for life would serve as sufficient punishment and
penitence for his actions – Thus, death sentence commuted to
imprisonment for life – However, the appellant not entitled to
premature release/remission for the offence u/s. 302 until he has
undergone actual imprisonment for at least thirty years.
B Code of Criminal Procedure, 1973: s. 235(2) – Infraction of
– Plea of appellant-accused that by passing a common order on
conviction and sentencing, the High Court contravened by not
hearing the petitioner separately on sentencing – Held: Adequate
and sufficient opportunity has been afforded to the appellant to
place all the relevant materials on record.
C
Disposing of the appeals, the Court
HELD: 1.1 On an overall view of the evidence and witness
statements adduced by the prosecution, the chain of circumstances
affirmatively establishes the guilt of the appellant. Though the
D counsel for the appellant has painstakingly sought to highlight
contradictions and inconsistencies in the prosecution’s case, it
is believed that the same do not create a reasonable doubt in the
mind of this Court. The five-fold test prescribed in Sharad
Birdhichand Sarda’s case are satisfied as the circumstances relied
upon are fully established; they are conclusive in nature and
E tendency; the chain of evidence is so complete as not to leave
any reasonable ground for conclusion consistent with the
innocence of the appellant; the facts established are consistent
only with the hypothesis of the guilt of the accused and exclude
every hypothesis except the one proved. The decision of the
F High Court as well as the District and Sessions Court convicting
the appellant for rape and murder of R etc., thus, is upheld. [Para
21][67-G-H; 68-A-B]
Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88 – relied on.
G 1.2 The defence is entitled to rely upon contradictions in
ocular evidence furnished by the eye-witnesses and highlight any
incongruity between their versions and the prosecution’s case.
It is not a universally affirmed position that the witnesses must
be confronted by the defence to seek advantage of the
contradictions. [Para 12][64-D]
H
IRAPPA SIDDAPPA MURGANNAVAR v. STATE OF 53
KARNATAKA

1.3 On the aspect that PW-7, PW-8, PW-9 and PW-10 are A
planted witnesses, at first the site map is taken note of which
indicates the place/location where PW-7 resides and also the
pathway from the village to the stream, which is about a kilometre
long. PW-15 has deposed that there being waste shrubs next to
his field on the banks of the stream, it was difficult to go to the
B
stream through the shrubs. Next to his land, lie the fields
belonging to others, beyond which there was a graveyard where
people did not usually visit at odd hours. Secondly, there are good
and sound reasons to believe that the date 30th December 2010
deposed to by PW- 8, PW-9 and PW-10 is on account of failure to
recollect the exact date when they had seen the appellant with a C
gunny bag and the girl on his shoulder, and not on account of
false deposition on the factum that the appellant was seen carrying
the child at about 8:30 p.m. The witnesses are village residents
and as their evidence was recorded nearly a year after the
occurrence, they may not have possibly remembered the date of
D
sighting, for the reason that dates, especially those in the
Gregorian calendar, may not be of much relevance or consequence
in the rural areas. [Para 13, 14][64-E-H; 65-A-B]
1.4 On 29th December 2010, PW-4 had filed a missing
person report at about 5:00 p.m. On 30th December 2010, the
parents of R, PW-1 and PW-19 had also reached the village. In E
case PW-8, PW-9 and PW-10 had seen the appellant carrying the
girl child on his shoulder on 30th December 2010, they would
have immediately accosted him and questioned him about the
girl, for by then the disappearance of R had become common
knowledge for all villagers. Therefore, the date on which PW-8, F
PW-9 and PW-10 saw the appellant with the small girl on his
shoulder was not 30th December 2010. Rather, 30th December
2010 was the date on which these witnesses had informed other
villagers that they had seen the appellant carrying a small girl on
his shoulder about two days earlier. On a careful scrutiny of the
statements made by PW-8, PW-9 and PW-10, it becomes apparent G
that they had met PW-1 on 30th December 2010 and informed
him about their sighting. The inconsistency of dates, thus, can be
explained as inadvertence or strained memory due to passage of
time, not resulting in displacing the case against the appellant
that the prosecution has made out. [Para 15][65-B-F] H
54 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 1.5 There is no room left for doubt that recovery of the
dead body of R was based on the appellant’s statement. The dead
body was concealed in a gunny bag with two stones and immersed
in the stream which had about midriff-high water. The fact that
PW-9 and PW-10 had deposed on almost identical lines does not,
in any way, reflect a discrepancy, but rather a possible lapse on
B
the part of the court recording their evidence. [Para 16][65-G-H;
66-A]
2.1 The impugned judgment reveals extensive study of
case-law on part of the High Court in considering the death
sentence imposed by the trial court. On an overall view of the
C facts and circumstances of the matter, the High Court was of the
opinion that the sentence of death should be confirmed, that there
were no mitigating circumstances to be found, and that there were
many aggravating circumstances as the appellant was known to
R, who reposed complete trust and faith in him and willingly
D allowed him to take her along, but she was raped and murdered
in the most gruesome manner and her body was dumped into the
stream. The motivation of the appellant, the vulnerability of the
deceased R, the enormity of the crime and the execution thereof,
the Court considered the case as falling in the “rarest of the
rare” category, and warranting the sentence of death to deter
E others from committing atrocious crimes, and to give emphatic
expression to society’s abhorrence of such crimes. [Para 23][68-
D-G]
2.2 The statement of objection filed by the respondent State
seeks to draw force from the observations of the High Court. In
F addition, the respondent State has defended the death sentence
on the grounds that the actions of the appellant constitute a grave
and uncommon crime endangering the moral fabric of the society.
The submission is that the matter falls in the category of ‘rarest
of the rare’ cases as the appellant, under the pretext of giving
biscuits, committed rape and murder of a five-year old girl, and
G threw her dead body into the stream. The deceased R could not
have provided resistance, much less provocation for the crime.
Relying on the data compiled by the National Crime Records
Bureau which shows that an average of 77 acts of rape were
committed daily in India in the year 2020, the counsel has sought
H a deterrent penalty for the actions of the appellant. [Para 25][70-
C-E]
IRAPPA SIDDAPPA MURGANNAVAR v. STATE OF 55
KARNATAKA

2.3 As regards the plea that there has been violation of A
s. 235(2) of the Code of Criminal Procedure, which mandates
that the accused must be heard, in light of the principle laid down
in Dagdu’s case, adequate and sufficient opportunity has been
afforded to the appellant to place all the relevant materials on
record. [Para 26][70-F-G; 71-D]
B
2.4 The trial court recorded that the death sentence was
awarded on the ground that “the crime was committed in an
extremely diabolical manner and that it was cruel, barbaric and
revolting.” It has been rightly pointed out that the trial court
merely noticed that the appellant was of young age (23 / 25 years)
belonging to a very poor family, but did not consider these as C
mitigating factors. The High Court noted that there are no
mitigating circumstances at all. This observation is incorrect. To
begin with, it is clear that the appellant had no criminal
antecedents, nor was any evidence presented to prove that the
commission of the offence was pre- planned. There is no material D
shown by the State to indicate that the appellant cannot be
reformed and is a continuing threat to the society. On the contrary,
it can be seen from the Death Sentence Prisoner Nominal Roll
issued by the Chief Superintendent, Central Prison, that the
conduct of the appellant in jail has been ‘satisfactory’. The
appellant’s conduct in prison would be considered as expiation E
for his past deeds, also reflecting his desire to reform and take a
humane turn. Furthermore, the young age of the appellant at the
time of commission of the offence (23/25 years), his weak socio-
economic background, absence of any criminal antecedents, non
pre-meditated nature of the crime, and the fact that he has spent F
nearly 10 years 10 months in prison have weighed with as other
extenuating factors, which add up against imposition of death
penalty which is to be inflicted only in rarest of the rare cases.
The respondent State has not shown anything to prove the
likelihood that the appellant would commit acts of violence as a
continuing threat to society; per contra, his conduct in the prison G
has been described as satisfactory. There is no doubt that the
appellant has committed an abhorrent crime, and for this it is
believed that incarceration for life will serve as sufficient
punishment and penitence for his actions, in the absence of any
material to believe that if allowed to live he poses a grave and H
56 SUPREME COURT REPORTS [2021] 11 S.C.R.

A serious threat to the society, and the imprisonment for life would
also ward off any such threat. It is believed that there is hope for
reformation, rehabilitation, and thus the option of imprisonment
for life is certainly not foreclosed and therefore acceptable.
[Para 28][72-D-G; 73-A-D]
B 2.5 There are sufficient mitigating factors to commute the
sentence of death imposed by the Sessions Court and confirmed
by the High Court into imprisonment for life, with the direction
that the appellant would not be entitled to premature release/
remission for the offence under Section 302 of the Penal Code
until he has undergone actual imprisonment for at least thirty
C (30) years. While maintaining other sentences, it is directed that
the sentences shall run concurrently and not consecutively, as
the appellant has been sentenced to imprisonment for life for the
offence under section 376 of the Code, which sentence is also
imposed for the offence under section 302 of the Code. [Para 29]
D [73-D-F]
2.6 The conviction of the appellant for the offences under
Sections 302, 376, 364, 366A and 201 of the Code and the
sentences awarded for the offences under Sections 376, 364, 366A
and 201 of the Code is upheld. The death sentence is commuted
E to that of life imprisonment with the stipulation that the appellant
would not be entitled to premature release/remission before
undergoing actual imprisonment of 30 years for the offence under
Section 302 of the Code and further the sentences awarded would
run concurrently and not consecutively. [Para 30][73-F-G; 74-A]

F Shanti Devi v. State of Rajasthan (2012) 12 SCC 158 :
[2012] 9 SCR 226; Ranjit Kumar Haldar v. State of
Sikkim (2019) 7 SCC 684 : [2019] 9 SCR 754; Santa
Singh v. State of Punjab (1976) 4 SCC 190 : [1977] 1
SCR 229; Dagdu and Others v. State of Maharashtra
(1977) 3 SCC 68 : [1977] 3 SCR 636; Shatrughna
G Baban Meshram v. State of Maharashtra (2021) 1 SCC
596; Bantu alias Naresh Giri v. State of Madhya Pradesh
(2001) 9 SCC 615 : [2001] 4 Suppl. SCR 298;
Purushottam Dashrath Borate v. State of Maharashtra,
(2015) 6 SCC 652 : [2015] 5 SCR 1112; Mulla v. State
H
IRAPPA SIDDAPPA MURGANNAVAR v. STATE OF 57
KARNATAKA

of U.P. (2010) 3 SCC 508 : [2010] 2 SCR 633; Mohan A
v. State of T.N. (1998) 5 SCC 336 : [1998] 3 SCR 317;
Akhtar v. State of UP (1999) 6 SCC 60; Union of India
v. V. Sriharan alias Murugan and Others (2016) 7 SCC
1 : [2015] 14 SCR 613.
Modi’s Textbook of Medical Jurisprudence and B
Toxicology, 25th edition (2016), Chapter XV – ‘Post
Mortem Changes and Time of Death’. pg 352 – referred
to.
Case Law Reference
[2012] 9 SCR 226 referred to Para 16 C

[2019] 9 SCR 754 referred to Para 16
[1985] 1 SCR 88 relied on Para 21
[1977] 1 SCR 229 referred to Para 26
D
[1977] 3 SCR 636 referred to Para 26
(2021) 1 SCC 596 referred to Para 26
[2001] 4 Suppl. SCR 298 referred to Para 27
[2015] 5 SCR 1112 referred to Para 28
E
[2010] 2 SCR 633 referred to Para 28
[1998] 3 SCR 317 referred to Para 28
(1999) 6 SCC 60 referred to Para 28
[2015] 14 SCR 613 referred to Para 30
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1473-1474 of 2017.
From the Judgment and Order dated 06.03.2017 of the High Court
of Karnataka, Dharwad Bench, in Criminal Appeal No.2082 of 2013
and Criminal Referred Case No. 32 of 2013. G
Gaurav Agrawal, Adv. for the Appellant.
Nikhil Goel, AAG, V. N. Raghupathy, Vinay Mathew, Advs. for
the Respondent.

H
58 SUPREME COURT REPORTS [2021] 11 S.C.R.

A The Judgment of the Court was delivered by
SANJIV KHANNA, J.
1. The judgment under challenge, passed by the High Court of
Karnataka at Dharwad on 6th March 2017, affirms the conviction of the
appellant – Irappa Siddappa Murgannavar – under Sections 302, 376,
B 364, 366A, and 201 of the Indian Penal Code, 1860 (for short, ‘the Code’);
and confirms the sentence of death for the offence under Section 302,
rigorous imprisonment for life for the offence under Section 376, rigorous
imprisonment for six years and a fine of Rs.10,000/- with default stipulation
for the offences under Sections 364 and 366A each, and rigorous
C imprisonment for two years and a fine of Rs.2,000/- with default
stipulation for the offence under Section 201 of the Code. The sentences
under Sections 376, 364, 366A, and 201 of the Code are directed to run
consecutively.
2. The case of the prosecution is that the appellant subjected the
D deceased R to rape, killed her by strangulation, and then disposed of her
body, tied in a gunny bag, into the stream named Bennihalla. As there
are no eye witnesses to the commission of the offences, in order to
prove these postulations, the prosecution has relied on three-fold
circumstances: (i) that the appellant took away R from a neighbour’s
house on 28th December 2010; (ii) that the appellant was last seen by
E certain witnesses carrying R and a gunny bag towards the Bennihalla
stream; and (iii) that based on the disclosure statement of the appellant
on 1st January 2011, the dead body of R was recovered in a gunny bag
from Bennihalla.
3. R, a girl aged 5 years and 2 months, was living with her maternal
F grandfather Rangappa in village Khanapur, Taluka Nargund, District
Gadag, Karnataka while her parents worked in Mangalore, Karanataka.
Rangappa’s neighbours Venkavva Patil (PW-5) and her nephew Ajit
Patil (PW-6) have testified that on 28th December 2010 at about 6:30
pm, R had come to their house to watch TV. At about 6:30 pm the
G appellant had also come to their house. He was talking to R and took her
with him on the pretext of buying her biscuits. Hanamappa (PW-4), who
is the brother of Rangappa, testified that R did not return that night, and
in spite of frantic efforts, she could not be traced. The next day, he
enquired at Venkavva Patil’s (PW-5) house about R’s whereabouts, where
he was informed that the appellant had taken R with him. Hanamappa
H
IRAPPA SIDDAPPA MURGANNAVAR v. STATE OF 59
KARNATAKA [SANJIV KHANNA, J.]

(PW-4) lodged a missing person report re R at Nargund Police Station A
on 29th December 2010 (Exhibit P-6). This complaint states that on
28th December 2010, at 9 pm, he was informed by Mallanagowda Kagadal
(PW-14) that R was missing, following which he went to his brother
Rangappa’s house and learnt from his brother’s daughter, Yallavva
Mangalore (PW-23), that R had gone to Venkavva Patil’s (PW-5) house
B
at 6:30 pm to watch TV, and that he, along with other people, tried
locating R but were unsuccessful. The complaint does not mention the
involvement of the appellant, a fact counted on by the counsel for the
appellant that will be addressed subsequently. Similarly, Yallavva
Mangalore (PW-23) has testified that R had gone to her neighbour’s
house at about 6:30 p.m. on 28th December 2010 to watch TV. As R did C
not return home, they had made enquiries with their neighbour Venkavva
Patil (PW-5) who had confirmed R’s visit to her house for watching TV
and that she may have gone out. Yallavva Mangalore (PW-23) had looked
for R and, on being unsuccessful, informed her father and uncles. R
could not be located on the said date or on 29 th December 2010.
D
4. Upon learning from Hanamappa (PW-4) and Yallavva Mangalore
(PW-23) that R was missing, her father Sanganabasappa (PW-1) and
mother Shivaleela (PW-19) returned to Khanapur on 30th December 2010.
Thereupon, extensive search for R was undertaken, but she could not be
found. Sanganabasappa (PW-1) has stated that he was told by Bhimappa
Talawar (PW-8), Hanamappa Talawar (PW-10) and others that they E
had seen the appellant carrying his daughter somewhere. He had then
made a complaint at the Nargund Police Station on 1st January 2011 at
12:30 a.m. (Exhibit P-1), which we would subsequently refer to.
Hanamappa (PW-4) has similarly testified that he had learnt from village
residents Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) and F
Hanamappa Talawar (P-10) that they had seen the appellant carrying R
on his shoulder and going towards the Bennihalla stream. Thereafter,
he went to the police station and informed the police about the possible
involvement of the appellant. On similar lines, Venkavva Patil (PW-5)
has deposed that she learnt from the police that Yallappagouda Kagadal
(PW- 7), Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) and G
Hanamappa Talawar (P-10) had seen the appellant carrying a gunny
bag and the deceased R, walking towards the stream. These evidences,
further elaborated below, have been adduced by the prosecution to
establish that the appellant was seen carrying R and a gunny bag and
walking towards the stream. H
60 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 5. Yallappagouda Kagadal (PW-7), in his sworn statement,
confirms the prosecution version that on 28 th December 2010 at about
8:30 p.m. while he was standing near his house, he saw the appellant
carrying a child (who was wearing a frock) and a gunny bag, going
through the bus stand road. He thought that the appellant was taking the
said girl to her house. Subsequently he had informed others and learnt
B
from Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) and
Hanamappa Talawar (PW-10) that they too had seen the appellant
carrying a girl child with him at about 8:30 p.m. on 28th December 2010.
Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9) and Hanamappa
Talawar (PW-10), in their depositions, have corroborated that they had
C seen the appellant carrying a girl on his shoulder and a gunny bag at 8:30
p.m. However, they have stated that the sighting was on 30 th December
2010. We shall examine this inconsistency and variance of the date
subsequently.
6. Ajit Patil (PW-6), in his testimony, has stated that they had
D searched for the appellant but he had left the village. This had also been
a factor, along with others, contributing to the suspicion that the appellant
had kidnapped R with an intention to rape and kill her.
7. The investigating officer B. Vijaykumar (PW-24) has stated
that he had taken charge of the investigation from PSI S.S. Kamathagi
E (PW-25) on 1st January 2011. He searched for the appellant and
subsequently arrested him on the same day in front of one Goudappagouda
Hanamantagouda Kagadal. The date and time of arrest as shown in the
chargesheet are 1st January 2011 at 4:30 am. B. Vijaykumar (PW-24)
has testified that the appellant, upon arrest, had made a disclosure
statement (Exhibit P-17), wherein he has stated, inter alia, that he
F inserted the body of R into a bag with two stones, tied the mouth of the
bag and threw it into the waters of Bennihalla. Based on the disclosure
statement, the appellant was taken to Bennihalla near the field of one
Shrinivasreddi Ramanagouda Hosamani (PW-15) where he showed the
place where he had thrown the dead body of R. On similar lines, Rajesab
G Nadaf (PW-11) and Shankrappa Tadasi (PW-12), in almost identical
testimonies, have deposed that the appellant had shown the spot in
Bennihalla where he had submersed the body of R tied in a gunny bag
along with two stones. On directions of the police, they dived into the
water and discovered a gunny bag, which contained the dead body of
R, along with two stones. The stones were identified by Rajesab Nadaf
H
IRAPPA SIDDAPPA MURGANNAVAR v. STATE OF 61
KARNATAKA [SANJIV KHANNA, J.]

(PW-11) and Shankarappa Tadasi (PW-12) and marked MO.1 and MO.2 A
while the gunny bag was marked MO.3 and the frock worn by R was
marked as MO.4. The version asserted by Rajesab Nadaf (PW-11) and
Shankarappa Tadasi (PW-12) is affirmed by the panch witnesses. It is
also avowed by Shrinivasreddi Ramanagouda Hosamani (PW-15) that
the police had asked two persons to enter the water, who found a sack
B
near the pipe connected to his pump set. The sack was opened to find
the dead body of R along with two stones. The prosecution has laid
reliance on these depositions to evidence that the dead body of R was
recovered from the stream based on the disclosure statement made by
the appellant.
8. Having noted the witness statements and evidence relied upon C
by the prosecution to prove the circumstances of commission of the
offences, we would examine the implication of the discrepancies in the
statements of witnesses and the prosecution case, which the counsel for
the appellant submits, establish that the prosecution has failed to prove
the case against the appellant beyond reasonable doubt. D
9. The first discrepancy alleged is predicated on the testimony of
Hanamappa (PW-4) and Yallava Mangalore (PW-23) vis-à-vis the
testimony of Venkavva Patil (PW-5) and Ajit Patil (PW-6) regarding the
presence of the appellant in the house of Venkavva Patil (PW-5) on
28th December 2010 at 6:30 p.m. Counsel for the appellant submits that E
the assertion that appellant took R with him on the pretext of getting her
biscuits is an afterthought and contrived evidence. In this regard, he
places reliance upon Exhibit P-6, i.e. the complaint filed by Hanamappa
(PW-4) on 29th December 2010 at 5:00 p.m., which makes no mention
of the presence of the appellant at the residence of Venkavva Patil
(PW- 5) and Ajit Patil (PW-6) or that he had taken R with him, in spite of F
averments in witness statements that the factum of the appellant taking
R with him had been communicated to Hanamappa (PW-4) before filing
of the complaint. Reliance is also placed on the testimony of PSI S.S.
Kamathagi (PW-25) who claims that he had visited the village after
recording the complaint (Exhibit P-6) and made efforts without success G
to trace R. Our attention was drawn to the FIR (Exhibit P-22) recorded
on the basis of statement made by Sanganabasappa (PW-1) in the
intervening night of 31st December 2010 and 1st January 2011. The FIR
mentions that Venkavva Patil (PW-5) and Ajit Patil (PW-6) had informed
Sanganabasappa (PW-1) that the appellant had taken R with him, and
H
62 SUPREME COURT REPORTS [2021] 11 S.C.R.

A that Sanganabasappa (PW-1) came to know of this fact only on 30th
December 2010. The counsel for the appellant has argued that Venkavva
Patil (PW-5) and Ajit Patil (PW-6) did not name the appellant though R
was missing from 6:30 p.m. onwards on 28th December 2010, and the
first mention of the appellant’s involvement surfaces only in the FIR
dated 1st January 2011. Therefore, the evidence of ‘last seen’ propounded
B
and based on depositions by Venkavva Patil (PW-5) and Ajit Patil (PW-
6) is shaky and doubtful.
10. Khanapur is a small village, secluded and away from urban
areas or other habitations, which is apparent from the fact that the closest
police station is located about nineteen kilometres away. Hanamappa
C (PW-4) who had made the police complaint (Exhibit P-6) on
29th December 2010, and his neighbours Venkavva Patil (PW-5) and
Ajit Patil (PW-6) are village dwellers and simple people. Village
communities are close-knit, and given the camaraderie, faith and trust
amongst the known villagers, Hanamappa (PW-4), Venkavva Patil
D (PW-5) and Ajit Patil (PW-6) may not have initially suspected the
appellant’s foul play in disappearance of R. The complaint (Exhibit P-6)
is short and brief; while mentioning that R was missing, it does not record
that she may have been raped and killed by someone. This is also evident
from Hanamappa’s (PW-4) cross-examination wherein he has stated
that at the time of filing of the complaint, he did not know whether the
E appellant had committed an offence. Noticeably, the implication as to
the involvement of the appellant was made shortly thereafter, that is on
31st December 2010. By then the entire village was in a state of alarm
and wary that a terrible crime had been committed by someone from the
village. Yallappagouda Kagadal (PW-7), Bhimappa Talawar (PW-8),
F Gadigeppa Talawar (PW-9), and Hanamappa Talawar (PW-10) had
come forward and stated that they saw the appellant carry a child towards
Bennihalla. The appellant, a driver by profession, had gone missing
according to Ajit Patil’s (PW-6) testimony. Therefore, mere non-
inclination to straight-away accuse the appellant who was apparently
close to Venkavva Patil (PW-5) and Ajit Patil (PW- 6) and had come to
G their house to watch television, should not be a ground to thrust aside
Hanamappa’s (PW-4) version as he had not named the appellant, or
depositions of Venkavva Patil (PW-5) and Ajit Patil (PW-6) that R had
left with the appellant. One could accept that there could be some
exaggeration in the statements of Venkavva Patil (PW-5) and Ajit Patil
H (PW-6) to the extent that they had heard the appellant conversing with
IRAPPA SIDDAPPA MURGANNAVAR v. STATE OF 63
KARNATAKA [SANJIV KHANNA, J.]

R and that he had taken her away on the pretext of giving her a biscuit, A
but this would not in any manner affect the factum that the appellant
and the victim R were present in the house of Venkavva Patil (PW-5)
and Ajit Patil (PW-6) at 6:30 p.m. on 28th December 2010 where they
had gone to watch TV. It would be rather imprudent to hold that the
appellant had not visited the house of Venkavva Patil (PW-5) and Ajit
B
Patil (PW-6) on 28th December 2010 at 6.30 p.m., when R was also
present, and that the appellant had left taking R with him.
11. It would be apposite to pay minute attention to the testimonies
of Yallappagouda Kagadal (PW-7), Bhimappa Talawar (PW-8),
Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10). These
villagers again had no reason to suspect that the appellant, who was C
carrying a child on his shoulder, was guilty of a criminal act of rape and
murder or that he was carrying a gunny bag on his shoulder for the
purpose of dumping the victim’s body in the stream. This is understandable
from the statement of Yallappagouda Kagadal (PW-7) according to which
he assumed that the appellant was taking the girl to her home. The situation D
changed rapidly thereafter, as is duly reflected in the statement made by
Sanganabasappa (PW-1) on the intervening night of 31st December 2010
and 1st January 2011 wherein he has cast suspicion on the appellant. The
statement reflects the anger of people in a rural environment as faith
had given way to disbelief. By that time, villagers had not been able to
locate R who was last seen with the appellant, who in turn had been E
spotted carrying a child and a gunny bag, and therefore, they suspected
that R had been raped and killed. There appeared no other reason for R
to have vanished and disappeared, she being a girl aged only about five
years who had gone to a neighbour’s house to watch TV in the evening.
The statement of PSI S.S. Kamathagi (PW-25) has not in any way F
contradicted the prosecution version or the testimonies of
Sanganabasappa (PW-1), Hanamappa (PW-4), Venkavva Patil (PW-5),
Ajit Patil (PW-6), Yallappagouda Kagadal (PW-7), Bhimappa Talawar
(PW-8), Gadigeppa Talawar (PW-9), Hanamappa Talawar (PW-10), and
Yallava Mangalore (PW-23).
G
12. We would now examine the date discrepancy in the court
testimonies of Yallapagouda Kagadal (PW-7), Bhimappa Talawar
(PW-8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10),
and consider the contention of the counsel for the appellant that
Yallapagouda Kagadal (PW-7), Bhimappa Talawar (PW-8), Gadigeppa
H
64 SUPREME COURT REPORTS [2021] 11 S.C.R.

A Talawar (PW-9) and Hanamappa Talawar (PW-10) are planted
witnesses. Yallappagouda Kagadal (PW-7) in his testimony has clearly
stated that he had seen the appellant carrying a girl on his shoulder at
about 8:30 p.m. on 28th December 2010. Contrary to Yallapagouda’s
(PW-7) statement relating to the date of sighting, Bhimappa Talawar
(PW-8), Gadigeppa Talawar (PW-9), and Hanamappa Talawar
B
(PW-10), have deposed that they had seen the appellant with a gunny
bag and a girl child on his shoulder on 30th December 2010 at about 8:30
p.m. This date – 30th December 2010 – has been repeatedly mentioned
by Bhimappa Talawar (PW-8) and Hanamappa Talawar (PW-10) and
once by Gadigeppa Talawar (PW-9). The counsel for the appellant has
C harped on the inconsistency of these dates. On the other hand, the State
has contended that this contradiction should have been put to the witnesses
in question in their cross-examination by the defence. We would have to
reject the contention raised by the State as untenable and fallacious. It
is an accepted position that the defence is entitled to rely upon
contradictions in ocular evidence furnished by the eye-witnesses and
D
highlight any incongruity between their versions and the prosecution’s
case. It is not a universally affirmed position that the witnesses must be
confronted by the defence to seek advantage of the contradictions.
13. On the aspect that Yallapagouda Kagadal (PW-7), Bhimappa
Talawar (PW-8), Gadigeppa Talawar (PW-9) and Hanamappa Talawar
E (PW-10) are planted witnesses, at first we take note of the site map
(Exhibit P-8) which indicates the place/location where Yallappagouda
Kagadal (PW-7) resides and also the pathway from the village to the
stream, which is about a kilometre long. Shrinivasreddi Ramanagouda
Hosamani (PW-15) has deposed that there being waste shrubs next to
F his field on the banks of Bennihalla, it was difficult to go to the stream
through the shrubs. Next to his land, lie the fields belonging to others,
beyond which there was a graveyard where people did not usually visit
at odd hours.
14. Secondly, we see good and sound reasons to believe that the
G date 30th December 2010 deposed to by Bhimappa Talawar (PW- 8),
Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10) is on
account of failure to recollect the exact date when they had seen the
appellant with a gunny bag and the girl on his shoulder, and not on account
of false deposition on the factum that the appellant was seen carrying

H
IRAPPA SIDDAPPA MURGANNAVAR v. STATE OF 65
KARNATAKA [SANJIV KHANNA, J.]

the child at about 8:30 p.m. The witnesses are village residents and as A
their evidence was recorded nearly a year after the occurrence, they
may not have possibly remembered the date of sighting, for the reason
that dates, especially those in the Gregorian calendar, may not be of
much relevance or consequence in the rural areas.
15. Furthermore, what has weighed with us is the undisputed fact B
that on 29th December 2010, Hanamappa (PW-4) had filed a missing
person report (Exhibit P-6) at about 5:00 p.m. On 30th December 2010,
the parents of R, Sanganabasappa (PW-1) and Shivaleela (PW-19) had
also reached the village. In case Bhimappa Talawar (PW-8), Gadigeppa
Talawar (PW-9) and Hanamappa Talawar (PW-10) had seen the appellant
carrying the girl child on his shoulder on 30th December 2010, they would C
have immediately accosted him and questioned him about the girl, for by
then the disappearance of R had become common knowledge for all
villagers. Therefore, the date on which Bhimappa Talawar (PW-8),
Gadigeppa Talawar (PW-9) and Hanamappa Talawar (PW-10) saw the
appellant with the small girl on his shoulder was not 30th December D
2010. Rather, 30th December 2010 was the date on which these witnesses
had informed other villagers that they had seen the appellant carrying a
small girl on his shoulder about two days earlier. On a careful scrutiny of
the statements made by Bhimappa Talawar (PW-8), Gadigeppa Talawar
(PW-9) and Hanamappa Talawar (PW-10), it becomes apparent that
they had met Sanganabasappa (PW-1) on 30 th December 2010 and E
informed him about their sighting. The inconsistency of dates, thus, can
be explained as inadvertence or strained memory due to passage of time,
not resulting in displacing the case against the appellant that the prosecution
has made out.
16. On the question of recovery of the dead body on the basis of F
the appellant’s disclosure statement, we have referred to the statements
of Gadigeppa Talawar (PW-9), Hanamappa Talawar (PW-10), Rajesab
Nadaf (PW-11), Shankarappa Tadasi (PW-12), Shrinivasreddi
Ramanagouda Hosamani (PW-15) and B. Vijaykumar (PW-24). There
is no room left for doubt that recovery of the dead body of R was based G
on the appellant’s statement. The dead body was concealed in a gunny
bag with two stones and immersed in the stream which had about midriff-
high water. The fact that Gadigeppa Talawar (PW-9) and Hanamappa
Talawar (PW-10) had deposed on almost identical lines does not, in any
way, reflect a discrepancy, but rather a possible lapse on the part of the
H
66 SUPREME COURT REPORTS [2021] 11 S.C.R.

A court recording their evidence. In Shanti Devi v. State of Rajasthan,1
this Court had considered the factum of recovery of the body of the
deceased at the instance of the accused as a strong circumstance for
conviction of the accused. Similarly, in Ranjit Kumar Haldar v. State
of Sikkim,2 recovery of dead body based on the disclosure statement of
the accused was considered a very strong incriminating circumstance
B
against her to maintain her conviction.
17. This brings us to the medical evidence and the question whether
it supports the prosecution version that R was raped and murdered on
28th December 2010. Dr. Girish Maraddi (PW-20) had conducted the
post mortem examination of R on 1st January 2011 at 10:00 a.m. His
C report is detailed and refers to cut lacerated wound over the vagina,
anteriorly upto urethra, and the ruptured hymen. There was also soft
tissue injury of the neck interiorly.
18. The report also states that the cause of death was asphyxia
caused by strangulation and not due to drowning. To confirm the said
D position, PW-20 had conducted the lung floating test. The post mortem
report states that the body was slightly decomposed and the skin had
also peeled all over the body. Small and large intestines, as well as the
lungs, were congested. The inquest panchnama (Exhibit P-2) records
that the face seemed swollen and the skin on the body seemed to be torn
E here and there. It had also become black at some places. The body had
swollen from neck to waist, and at some places the skin was torn and
had turned black in colour. Similarly, legs had swollen and the skin had
torn, turning black. The post mortem report (Exhibit P-11) records the
time of death as 72-86 hours before the examination. This would
corroborate with the prosecution version that R was raped and murdered
F on 28th December 2010.
19. To affirm our opinion as to the time of death we have studied
the opinion expressed in Modi’s Textbook of Medical Jurisprudence and
Toxicology, 25th edition (2016), Chapter XV – ‘Post Mortem Changes
and Time of Death’. At page 352, the treatise observes that the rate of
G putrefaction of body in water is more reliable than of body exposed to air
as the temperature in water is more uniform and the body is protected
from air. Ordinarily, the body takes twice as much time in water as in air
to undergo the same degree of putrefaction. The process is retarded,
1
(2012) 12 SCC 158, at para 17.
H 2
(2019) 7 SCC 684
IRAPPA SIDDAPPA MURGANNAVAR v. STATE OF 67
KARNATAKA [SANJIV KHANNA, J.]

when a body is lying in deep water and is well-protected by clothing. A
However, it is hastened when the body is lying in water contaminated
with sewage. Flotation of body takes place when gases of decomposition
or putrefaction develop within the submerged body. In India, submerged
body comes to the surface within 24 hours in summer and within two to
three days or more, and sometimes in more than a week, in winter. In
B
temperate climates a submerged body floats within a week in summer
and in about a fortnight in winter. Power of flotation of a decomposed
body is so great that in certain cases it may float to the surface in spite
of being weighted with a heavy stone. The duration required for flotation
of body depends upon the age, sex, the condition of the body, season of
the year and water. Bodies which are light in weight have low specific C
gravity and, therefore, float sooner.
20. In the context of the present case, there is no dispute that the
occurrence had taken place in late December, that is, in winter. We
have undertaken a check to ascertain the temperature range in the village
in late December. As per data, the temperature in the month of late D
December in Nargund (the taluka in which Khanapur village is located)
is between 19 to 29 degrees, and the temperature in water would be
certainly lower. Thus, it is clear that putrefaction of the body was retarded.
But the body had not floated and risen to the surface. The fact that the
body was swollen and was slightly decomposed, while the skin was
discoloured, would indicate that the putrefaction process had indeed E
started. The post mortem report and the inquest panchnama, therefore,
confirm the date when the crime was committed and fully corroborate
and support the ocular evidence of Sanganabasappa (PW-1), Hanamappa
(PW-4), Venkavva Patil (PW-5), Ajit Patil (PW-6), Yallapagouda Kagadal
(PW-7), Bhimappa Talawar (PW-8), Gadigeppa Talawar (PW-9), F
Hanamappa Talawar (PW-10), Rajesab Nadaf (PW-11), Shankarappa
Tadasi (PW-12), Shrinivasreddi Ramanagouda Hosamani (PW-15) and
B. Vijaykumar (PW-24).
21. On an overall view of the evidence and witness statements
adduced by the prosecution, the chain of circumstances affirmatively G
establishes the guilt of the appellant. Though the counsel for the appellant
has painstakingly sought to highlight contradictions and inconsistencies
in the prosecution’s case, we believe that the same do not create a
reasonable doubt in the mind of this Court. The five-fold test prescribed

H
68 SUPREME COURT REPORTS [2021] 11 S.C.R.

A by Fazal Ali J. in Sharad Birdhichand Sarda v. State of Maharashtra3
are satisfied as the circumstances relied upon are fully established; they
are conclusive in nature and tendency; the chain of evidence is so
complete as not to leave any reasonable ground for conclusion consistent
with the innocence of the appellant; the facts established are consistent
only with the hypothesis of the guilt of the accused and exclude every
B
hypothesis except the one proved. The decision of the High Court as
well as the District and Sessions Court convicting the appellant for rape
and murder of R etc., thus, is upheld.
22. Having established the culpability of the accused, we shall
proceed to examine the issue of sentencing. As noted previously, the
C appellant has been sentenced to death for the offence under Section
302, which sentence has been confirmed by the High Court, along with
prison sentences as set out in paragraph 1 of this judgment.
23. The impugned judgment reveals extensive study of case-law
on part of the High Court in considering the death sentence imposed by
D the trial court. On an overall view of the facts and circumstances of the
matter, the High Court was of the opinion that the sentence of death
should be confirmed, that there were no mitigating circumstances to be
found, and that there were many aggravating circumstances as the
appellant was known to R, who reposed complete trust and faith in him
E and willingly allowed him to take her along, but she was raped and
murdered in the most gruesome manner and her body was dumped into
the stream. The court observed that “…when an innocent and helpless
girl of 5 was subject to such a barbaric treatment by a person who
was in a position of her trust, his culpability assumes the proportion
of extreme depravity and arouses a sense of revulsion in the mind of
F an ordinary person.” The motivation of the appellant, the vulnerability
of the deceased R, the enormity of the crime and the execution thereof,
the Court considered the case as falling in the “rarest of the rare” category,
and warranting the sentence of death to deter others from committing
atrocious crimes, and to give emphatic expression to society’s abhorrence
G of such crimes.
24. Challenging the order on sentence, the appellant has argued
that by passing a common order on conviction and sentencing, the High
Court has contravened Section 235(2) of the Code of Criminal Procedure,
3
H (1984) 4 SCC 116
IRAPPA SIDDAPPA MURGANNAVAR v. STATE OF 69
KARNATAKA [SANJIV KHANNA, J.]

1973 (for short, ‘CrPC’) by not hearing the petitioner separately on A
sentencing. He has also submitted that the High Court failed to call for
mitigating circumstances, that there were no aggravating circumstances,
that the case does not fall into the category of ‘rarest of the rare’, that
the appellant was only 25 years old who could be reformed and
rehabilitated and is not likely to be a menace to the society, that the
B
appellant has undergone a lengthy period in custody, that there is no
material to suggest that the option of awarding life sentence was
unquestionably foreclosed, and that death sentence should ordinarily be
awarded when there is no other alternative left. In addition to the
aforesaid, counsel for the appellant has also listed mitigating factors for
commutation of death sentence to life imprisonment as under: C
“1) The murder was not committed in pre-planned manner. Though
rape on a child of 5 years is itself a grave crime, the manner of
the committing the crime cannot be said to be gruesome or
diabolical.
2) There is no material led by the prosecution to show that the D
accused cannot be reformed. The State has not brought material
to show that the accused is a continuing threat to society and the
option of imposing life sentence is unquestionably foreclosed.
3) Young age of the accused is a mitigating factor.
E
4) Lack of criminal antecedent is a mitigating factor.
5) Conduct in jail has to be considered.
6) Social economic back ground has not been considered, including
poverty and lack of education.
F
7) Perhaps the accused, being unaware of his right to lead evidence
of mitigating circumstances, did not request for time for producing
material on this aspect. Though it would not vitiate the sentence,
there is sufficient material before this Hon’ble Court for making a
further inquiry into the mitigating circumstances.
8) The accused is in death row for last 9 years since the judgment G
of trial court on 08.03.2012.”
The counsel for the appellant has drawn our attention to a certificate
issued by the Gandhi Research Foundation, Jalgaon which states that
the appellant had participated in the ‘Gandhi Vichar Sanskar Pariksha’
H
70 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 2017-18 organised by the Gandhi Research Foundation, Jalgaon. It
appears from the website of the Foundation that it conducts a country-
wide examination called “GVSP (Gandhian Values for Sustainable
Peace - Gandhi Vichar Sanskar Pariksha) to inculcate among the
young generation the art of nonviolence in daily life.” Another
certificate dated 22nd December 2016 issued by the Yogavidya Gurukul,
B
a research institute recognised by Pune University, states that the
appellant has successfully completed the course Yoga Pravesh. We have
also taken on record the letter dated 4th September 2021 from Medical
Officer, Central Prison Hospital, Belagavi addressed to an advocate,
stating that the appellant has been diagnosed with Oral Generalised Sub-
C Mucosal Fibrosis which is in premalignant condition.
25. The statement of objection filed by the respondent State in the
present appeal seeks to draw force from the observations of the High
Court noted above. In addition, the respondent State has defended the
death sentence on the grounds that the actions of the appellant constitute
D a grave and uncommon crime endangering the moral fabric of the society.
The submission is that the matter falls in the category of ‘rarest of the
rare’ cases as the appellant, under the pretext of giving biscuits,
committed rape and murder of a five-year old girl, and threw her dead
body into the stream. The deceased R could not have provided resistance,
much less provocation for the crime. Relying on the data compiled by
E the National Crime Records Bureau which shows that an average of 77
acts of rape were committed daily in India in the year 2020, the counsel
has sought a deterrent penalty for the actions of the appellant.
26. A perusal of pages 186 and 187 of this appeal would show that
on the same day as conviction, the trial court imposed death sentence
F vide a common order. The appellant has submitted that this is in violation
of Section 235(2) of the Code of Criminal Procedure, which mandates
that the accused must be heard on sentence. In Santa Singh v. State of
Punjab,4 when the accused was convicted and sentenced to death by
one single judgment, a 2-judge bench of this court found that there was
G infraction of Section 235(2) of the Code of Criminal Procedure and set
aside the sentence and remanded the matter to the Sessions Court. The
aspect of remand was considered by a 3-judge bench in Dagdu and
Others v. State of Maharashtra,5 wherein it was observed that the
4
(1960) 4 SCC 190
5
H (1977) 3 SCC 68
IRAPPA SIDDAPPA MURGANNAVAR v. STATE OF 71
KARNATAKA [SANJIV KHANNA, J.]

failure on the part of the trial court to hear the accused on sentencing A
does not necessarily entail a remand to that court. If the trial court has
failed to do so and the accused challenges the same before the higher
court, it would be open to the higher court to remedy the breach by
giving a hearing to the accused on the question of sentence. More precisely,
Goswami J. in Dagdu (supra) observed:
B
“Whenever an appeal court finds that the mandate of Section
235(2) CrPC for a hearing on sentence had not been complied
with, it, at once, becomes the duty of the appeal court to offer to
the accused an adequate opportunity to produce before it whatever
materials he chooses in whatever reasonable way possible.”
C
Analysing several decisions of this Court on this issue, Uday U.
Lalit, J., in Shatrughna Baban Meshram v. State of Maharashtra,6
observed that merely on account of infraction of Section 235(2) of the
Code of Criminal Procedure, the death sentence ought not to be commuted
to life imprisonment. But in light of the principle laid down in Dagdu
(supra), we have afforded adequate and sufficient opportunity to the D
appellant to place all the relevant materials on record before us.
27. In Shatrughna Baban Meshram (supra), 67 judgments of
the Supreme Court in the previous 40 years were surveyed wherein
death sentence had been imposed by the trial court or the High Court for
the alleged offences under Sections 376 and 302 of the Code, and where E
the age of victims was below 16 years. It was noticed that:
“35.1. Out of these 67 cases, this Court affirmed the award of
death sentence to the accused in 15 cases. In three (at Sl. Nos.
26-A, 33-A and 41-A) out of said 15 cases, the death sentence
was commuted to life sentence by this Court in review petitions. F
Out of remaining 12 cases, in two cases (where review petitions
were heard in open court in terms of law laid down in Mohd. Arif
v. Supreme Court of India), namely, in cases at Sl. Nos. 51-A and
65-A, the death sentence was confirmed by this Court and the
review petitions were dismissed. Thus, as on date, the death G
sentence stands confirmed in 12 out of 67 cases where the principal
offences allegedly committed were under Sections 376 and 302
IPC and where the victims were aged about 16 years or below.

6
(2021) 1 SCC 596 H
72 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 35.2. Out of these 67 cases, at least in 51 cases the victims were
aged below 12 years. In 12 out of those 51 cases, the death sentence
was initially awarded. However, in 3 cases (at Sl. Nos. 26-A, 33-
A and 41-A) the death sentence was commuted to life sentence
in review.”
B It appears from the above data that low age of the victim has not
been considered as the only or sufficient factor by this Court for imposing
a death sentence. If it were the case, then all, or almost all, 67 cases
would have culminated in imposition of sentence of death on the accused.
In the case of Bantu alias Naresh Giri v. State of Madhya Pradesh,7
where the appellant was accused of raping and murdering a six year old
C girl, this court noted that though his act was heinous and required
condemnation, but it was not rarest of the rare, so as to require the
elimination of the appellant from the society. There too, there was nothing
on record to indicate criminal antecedents of the appellant or to show
that he would be a grave danger to the society.
D 28. The learned trial court has recorded that the death sentence
was awarded on the ground that “the crime was committed in an
extremely diabolical manner and that it was cruel, barbaric and
revolting.” It has been rightly pointed out by the counsel for the appellant
that the trial court merely noticed that the appellant was of young age
E (23 / 25 years) belonging to a very poor family, but has not considered
these as mitigating factors. The High Court has noted that there are no
mitigating circumstances at all. We find this observation incorrect. To
begin with, it is clear that the appellant had no criminal antecedents, nor
was any evidence presented to prove that the commission of the offence
was pre- planned. As submitted by the counsel for the appellant, there is
F no material shown by the State to indicate that the appellant cannot be
reformed and is a continuing threat to the society. On the contrary, it can
be seen from the Death Sentence Prisoner Nominal Roll dated 17 th July
2017 issued by the Chief Superintendent, Central Prison, Belgaum, that
the conduct of the appellant in jail has been ‘satisfactory’. We would
G consider the appellant’s conduct in prison as expiation for his past deeds,
also reflecting his desire to reform and take a humane turn. Furthermore,
the young age of the appellant at the time of commission of the offence

7
H (2001) 9 SCC 615
IRAPPA SIDDAPPA MURGANNAVAR v. STATE OF 73
KARNATAKA [SANJIV KHANNA, J.]

(23 / 25 years),8 his weak socio- economic background,9 absence of any A
criminal antecedents,10 non pre-meditated nature of the crime,11 and the
fact that he has spent nearly 10 years 10 months in prison have weighed
with us as other extenuating factors, which add up against imposition of
death penalty which is to be inflicted only in rarest of the rare cases.
The respondent State has not shown anything to prove the likelihood
B
that the appellant would commit acts of violence as a continuing threat
to society; per contra, his conduct in the prison has been described as
satisfactory. There is no doubt that the appellant has committed an
abhorrent crime, and for this we believe that incarceration for life will
serve as sufficient punishment and penitence for his actions, in the
absence of any material to believe that if allowed to live he poses a C
grave and serious threat to the society, and the imprisonment for life in
our opinion would also ward off any such threat. We believe that there is
hope for reformation, rehabilitation, and thus the option of imprisonment
for life is certainly not foreclosed and therefore acceptable.
29. Thus, we find sufficient mitigating factors to commute the D
sentence of death imposed by the Sessions Court and confirmed by the
High Court into imprisonment for life, with the direction that the appellant
shall not be entitled to premature release/remission for the offence under
Section 302 of the Code until he has undergone actual imprisonment for
at least thirty (30) years. While maintaining other sentences, we direct
that the sentences shall run concurrently and not consecutively. We say E
so as the appellant has been sentenced to imprisonment for life for the
offence under section 376 of the Code, which sentence is also imposed
for the offence under section 302 of the Code.
30. For the aforesaid reasons, we uphold the conviction of the
appellant for the offences under Sections 302, 376, 364, 366A and 201 of F
the Code and the sentences awarded for the offences under Sections
376, 364, 366A and 201 of the Code. The appeals are, however, partly
allowed by commuting the death sentence to that of life imprisonment
with the stipulation that the appellant shall not be entitled to premature
release/remission before undergoing actual imprisonment of 30 years G

8
Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652
9
Mulla v. State of U.P., (2010) 3 SCC 508
10
Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652
11
Mohan v. State of T.N., (1998) 5 SCC 336; Akhtar v. State of UP, (1999) 6 SCC 60 H
74 SUPREME COURT REPORTS [2021] 11 S.C.R.

A for the offence under Section 302 of the Code and further the sentences
awarded shall run concurrently and not consecutively.12
The appeals and all pending applications are disposed of.

B Nidhi Jain Appeals disposed of.

C

D

E

F

G

12
In view of the Constitutional Bench decision in Union of India v. V. Sriharan alias
Murugan and Others, (2016) 7 SCC 1, the above direction would not affect the
constitutional power of the President or Governor under Article 72 or 161 of the
H Constitution of India.