B.A. UMESHversusREGISTRAR GENERAL, HIGH COURT OF KARNATAKA

                            [2016] 5 S.C.R. 438



A                              B.A. UMESH
                                     v.
       REGISTRAR GENERAL, HIGH COURT OF KARNATAKA
              (Criminal Misc. Petition Nos. 4213-4214 of2016)
B                                    IN
             (Review Petition (Criminal) Nos. 135-136 of201 I)
                                     IN
                  (Criminal Appeal Nos. 285-286of2011)
c                           OCTOBER 03, 2016
         [RANJAN GOGOi, PRAFULLA C. PANT AND A.M.
                    KHANWILKAR, JJ.)
           Code of Criminal Procedure, 1973: s.235(2) - Hearing on
D   question of sentence - Plea that no separate date for hearing on
    sentence was given by trial court as such for violation of s.235(2),
    sentence of death cannot be affirmed - Held: There is no mandate
    in s.235(2) to fix separate date for hearing on sentence - It depends
    on the facts and circumstances as to whether a separate date is
    required for hearing on sentence or parties feel convenient to argue
E   on sentence on the same day - As such, merely for the reason that
    no separate date is given for hearing on the sentence, the review
    petition cannot be allowed.
           Sentence/Sentencing: Death sentence - Petitioner having
    criminal record - Committed murder and rape - Trial court convicted
F   him ulss.376, 302 and 392 and passed death sentence - High Court
    upheld conviction and sentence - Appeal before Supreme Court
    dismissed - Review petition - Court declined to interfere with
    conviction and sentence - Petition u/s.235(2) for open hearing -
    Submission confined only on the point of sentence - Prayer for
G   commutation of sentence - Held: In view of criminal history of the
    petitioner, the age of 30 years of the petitioner (at the time of
    incident) cannot be a ground to show any kind of leniency on
    sentence - Petitioner committed crimes not only before the incident,
    but also within two days, subsequent to the incident, i.e. another
    robbery in connection with which he was apprehended by the public
H
                                     438
  B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF                         439
                    KARNATAKA

and handed over to the police - Taken together, the petitioner is a       A
menace and threat to the society - The aggravating circumstances
are grave and far more serious as against the mitigating
circumstances pointed out on behalf of the petitioner - Jn view of
facts and circumstances of the case, gravity of the offence, and the
manner in which the crime is committed and the antecedents of
                                                                          B
petitioner who-is an ex-police official, no sufficient reason made
out to modify the order of affirmation of death sentence.
       Witness: Child witness - Held: If the statement of the witness,
aged seven years, has been found natural, trustworthy and without
any chance of being tutored, it cannot be taken lightly as mitigating
c ircums lances.
                                                                          c
      Disposing of the petitions, the Court
       HELD: 1. It is true that the convict has a right to be heard
before sentence. There is no mandate in Section 235(2) Cr.P.C.
to fix separate date for hearing on sentence. It depends on the           D
facts and circumstances as to whether a separate date is required
for hearing on sentence or_ parties feel convenient to argue on
sentence on the same day. Had any party pressed for !;ieparate
date for hearing on the sentence, or both of them wanted to be
heard on some other date, situation could have been different.
In the present case, the parties were heard on sentence by both           E
the courts below, and finally by this Court, as is apparent from
the judgment under review. As such, merely for the reason that
no separate date is given for hearing on the sentence, the Review
Petition cannot be allowed. [Para 8] (445-B-D]
      2. If the statement of the witness, aged seven years, has           F
been found natural, trustworthy and without any chance of being
tutored, it cannot be taken lightly as mitigating circumstances,
particularly; in the facts and circumstances of the present case.
Therefore, the plea that though the testimony of the child (PW-2)
aged about seven years could be sufficient for holding the                G
petitioner guilty of offence for conviction but the death sentence
should not be imposed on the basis of testimony of seven years
old child cannot be accepted. (Para 13] (447-D]
      3. In view of criminal history of the petitioner, age of 30
years of the petitioner (at the time of incident), in the facts and
                                                                          H
440           SUPREME COURT REPORTS                      [2016) 5 S.C.R.



A     circumstances of the case cannot be a ground to show any kind of
      leniency on sentence. As far as the fact as to leaving PW-2 (seven
      years old child) unharmed is concerned, it is apparent that actually
      the child was left unharmed not because of any compassion on
      the part of the petitioner. Rather he was on a hasty retreat from
      the place of incident. The petitioner appears to have committed
B
      number of crimes and also escaped from the lawful custody before
      commission of this crime. The worst is that the petitioner
      committed crimes not only before the incident, but also within
      two days, subsequent to the incident, i.e. another robbery in
      connection with which he was apprehended by the public and
c     handed over to the police. Taken together, the petitioner is a
      menace and has become threat to the society. On overall analysis
      of facts and circumstances of the case, gravity of the offence, and
      the manner in which the crime is committed read with the
      antecedents of petitioner who is an ex-police official, there is not
      sufficient reason to review or modify the order of affirmation of
D
      death sentence in the present case. The aggravating
      circumstances are grave and far more serious as against the
      mitigating circumstances. [Paras 19, 20] [450-D-G)
            Tuttu Lodhi @ Pancham Lodhi v. State of Madhya
            Pradesh Cr A.292-293 of 2014 dated 16.09.2016 -
E           distinguished.
            Aftab Ahmad Khan v. State of Hyderabad AIR 1954
            SC 436 : 1955 SCR 588 - held inapplicable.
            Mohd. Arif and others v. The Registrm; Supreme Court
            of India and others 2014 (11) SCR 1009 : (2014) 9
 F          SCC 737; B.A. Umesh v. Registrar General, High Court
            of Karnataka 2011 (2) SCR 367 : (2011) 3 SCC 85;
            Bachan Singh v. State of Punjab (1980) 2 SCC 684;
            Machhi Singh v. State of Pw1jab 1983 (3) SCR 413 :
            (1983) 3 SCC 470; Dagdu and others v. State of
G           Maharashtra 1977 (3) SCR 636 : (1977) 3 SCC 68;
            Tarlok Singh v. State of Punjab 1977 (3) SCR 711 :
            (1977) 3 SCC 218; Deepak Rai v. State of Bihar 2013
            (14) SCR 297 : (2013) 10 SCC 421; Suthendraraja
            alias Suthenthira Raja alias Santhan and others v. State
            through DSPICBI, SIT, Chennai 1999 (3) Suppl. SCR
H           540 : (1999) 9 sec 323 - referred to.
 B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF                               441
                   KARNATAKA

                        Case Law Reference                                    A
2014 (11) SCR 1009              referred to              Para 1
2on (2) SCR 367                 referred to              Para6
(1'!80) 2 sec 684               referred to              Para7
19~~ (3) SCR 413                referred to              Para 7                B

19F (3) SCR 636                 referred to              Para9
197~ (3) SCR 711                referred to              Para 10
2013 (14) SCR 297               referred to              Para 11
1955 SCR 588                    held inapplicable        Para 15
                                                                               c
1999 (3) Suppl. SCR 540         referred to              Para 15
       CRIMINAL APPELLATE JURISDICTION : Criminal Misc.
Petition Nos. 4213-4214 OF 2016 in Review Petition (Criminal) Nos.
135-136of2011 in Criminal Appeal Nos. 285-286of2011.                           D
     Ms. Kiran Suri, Sr. Adv., Amit S. J., Mukesh Kumar Singh,
Ankolekar Gurudatta, Advs. for the Appellant.
      Ms. Anitha Shenoy, Ms. Srishti Agnihotri, Ms. Surabhi Aggarwal,
V. N. Raghupathy, Advs. for the Respondents.
                                                                               E
      The Judgment of the Court was delivered by
       PRAFULLA C. PANT, J. I. Review Petition (Criminal) Nos.
135-136 of 2011 are heard in open court, as prayed in Criminal
Miscellaneous Petition Nos. 4213-4214 of2016, in the light of decision
of this Court in Molu/. Arif (Int/ otlters v. Tlte Registr"r, Supreme
                                                                               F
Court of Indi" "nd otlters (2014) 9 SCC 737. The Review Petitions
were earlier dismissed by circulation vide order dated 07.09.2011
affirming the dismissal of Criminal Appeal Nos. 285-286of2011, whereby
death sentence awarded to the review petitioner, stood affirmed.
       2. Brief facts of the case are that Jayashri (deceased), after death
of her husband, used to live with her son PW-2 Suresh, aged seven              G
years, in Bhuvaneshwarinagar, Bangalore, as a tenant of PWc8 Lalitha
Jaya. On 28.02.1998 as usual the deceased brought back her son at
1.00 p.m. from the school. After lunch at home, the son went out to play
with his friends. When PW-2 Suresh returned home at about 5.00 p.m.,
he noticed that petitioner B.A. Umesh going out through hall and told          H
442           SUPREME COURT REPORTS                         [2016] 5 S.C.R.


A   him that he was "uncle Venkatesh". He (petitioner) further told him that
    his mother (deceased) was possessed with some evil spirits, as such, he
  · had tied her hands and was going to bring a doctor. Thereafter, the
    petitioner left the house with a bag. PW- I 0 Basvaraju and PW- I I Natesh
    also saw the petitioner going out of the house with the bag. When
    Suresh went into the room, he saw his mother lying flat on the ground
B
    with blood on the floor. She was tied with a saree at one end, and the
    other end was tied with the window. As the deceased did not respond to
    call of her son Suresh, he went to the neighbour CW-7 Kusuma Shetty,
    and told her as to what he had seen. Kusuma Shetty called CW-6
    Geetha Hegde and PW-8 Lalitha Jaya and all the three saw through
c window that Jayashri was lying on the ground. Thereafter PW-8 talitha
    Jaya called PW-7 Bylappa, a police constable, who used to live in the
    locality. In turn, PW-7 Bylappa rang PW-9 Inspector Papanna, who
    came to the spot with PW-6 Constable Garudappa. The police personnel
    saw Jayashri lying dead on the floor with genitals exposed and blood
    oozing from her vagina. Articles in the house were lying scattered. The
D
    dog squad, a photographer and a finger print expert were called at the
    place of incident. Crime No. I 08 of 1998 was registered at the police
    station Peenya Circle, Yashvanthpur Sub Division Taluk Bangalore
    District, Bangalore City and PW-29 Inspector B.N. Nyamagowda took
    up the investigation. PW-14 A. Kumar, police constable from dog squad,
E PW-16 Jaganath, photographer, and PW-13 R. Narayiin~ppa, finger print
    expert of the police department prepared their reports. The d_ead body
    was sealed and inquest report was prepared in the presence of PW-2
    Suresh, PW-3 Lakshmamma, and PW-4 Maare Gowda, and the same
    was sent for post mortem examination. PW-26 Dr. Somashekar
    conducted autopsy on the dead body and opined that the deceased was
F
    smothered after commission of sexual assault. On 02.03.1998 at about
    2.30 p.m., petitioner B.A. Umesh was arrested while committing another
    robbery in the house of Smt. Seeba. On interrogation, he disclosed
    having committed several crimes at various places. He also made
    disclosure about the robbed articles. The police took him to the house,
G where he used to live as tenant, to verify the disclosures made by him
    about the robbed articles kept by him. As many as 191 articles, including
    23 items stolen from the house of the deceased, were recovered by the
    police from said house, and a mahazar (Ext. P-11) was prepared. PW-
    22 Manjula, sister of the deceased identified the articles seized. The
    Test Identification Parade was held on 30.03.1998 by PW-24 K.S.
H
  B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF                             443
         KARNATAKA [PRAFULLA C. PANT, J.]

Ramanjanappa, Taluka Executive Magistrate, whereafterthe seized items . A
were sent for examination to Forensic Science Laboratory. On completion
of investigation, a charge-sheet was filed against the petitioner for his
trial in respect of offences punishable under Sections 376, 302 and 392
of Indian Penal Code (IPC). On committal of case to the Court of
Sessions, the charge with three heads was framed against the petitioner/
                                                                          B
accused who pleaded not guilty and claimed to be. tried.
       3. Prosecution produced twenty nine witnesses and their evidence
was recorded by the trial court whereafter the same was put to the
petitioner B.A. Umesh under Section 313 of Criminal Procedure Code
(Cr.P.C.) and opportunity was given to him to adduce the evidence in
defence. After hearing the parties the trial court (Sessions Judge, Fast
                                                                              c
Trek Court-VII, Bangalore) vide its judgment and order dated 26.10.2006,
convicted the accused/petitioner under Sections 302, 3 76 and 392 IPC.
(We are not discussing the prosecution evidence in detail as the Review
Petition is pressed only on the point of sentence.)
       4. The trial court heard the parties on the quantum of sentence,       D
and considering gravity of offence and criminal history of the accused
and other aggravating and mitigating circumstances, vide order dated
27.10.2006, the convict/petitioner (B.A. Umesh) was sentenced to death
under Section 302 IPC and he was directed to be hanged by neck till he
is dead. The trial court further awarded sentence of rigorous imprisonment    E
fora period of seven years to the convict and directed him to pay fine of
Rs.25,000/- under Section 376 !PC. He was further sentenced to rigorous
imprisonment for a period often years and was directed to pay fine of
Rs.25,000/- under Section 392 IPC. The record was sent to the High
Court ofKarnataka under Section 366 Cr.P.C. for confirmation of death
sentence. The Reference was registered as Reference No. 3 of 2006.            F
The convict filed Criminal Appeal No. 2408 of2006 under Section374(2)
Cr.P.C. against his conviction and sentence recorded by the trial court.
       5. The High Court heard the parties on the Criminal Reference
No. 3 of2006 and Criminal Appeal No. 2408 of2006, and disposed of
the same vide common judgment and order dated 04. l 0.2007. The               G
conviction of the petitioner was affirmed by the High Court on all the
three counts, i.e. under Sections 302, 376 and 392 !PC. However, on
the point of sentence, one of the Hon'ble Judges (Hon'ble Mr. Justice
R.B. Naik) while agreeing with sentence on other counts, directed the
sentence of imprisonment for life on the charge of murder with the            H
444             SUPREME COURT REPORTS                           [2016) 5 S.C.R.


A     observation that the convict shall not be entitled to any remission, and his
      imprisonment shall remain until the term of his natural life. The another
      Hon'ble Judge, who was part of the Bench (Hon'ble Mr. Justice V.G.
      Sabhahit) confirmed the conviction and sentence of the petitioner on all
      the three counts, as awarded by the trial court, including the sentence of
      death under Section 302 !PC. In view of difference of opinion, the
B
      matter was heard by the third Judge (Hon'ble Mr. Justice S.R.
      Bannurmath) under Section 392 Cr.P.C. After hearing the parties, the
      third Judge agreed with Hon'ble Mr. Justice V.G. Sabhahit that it is a
      case of "rarest of rare" category and, vide judgment and order dated
      18.2.2009, confirmed the sentence of death, and dismissed the criminal
c     appeal.
             6. Aggrieved by the above mentioned judgment and order of the
      High Court, Criminal Appeal Nos. 285-286 of2011 were filed before
      this Court on behalf of the petitioner, and after hearing the parties, the
      same were dismissed vide judgment and order dated 01.02.2011 (reported
D     in (2011) 3 SCC 85 as B.A. Umeslt v. Re1:istrar General, Hi1:1t Court
      of Karnataka). Thereafter, the petitioner filed Review Petition (Crl.)
      Nos. 135-136 of2011. After consideration of the same (by circulation),
      opining again that it is a case of rarest of rare, this Court declined to
      interfere with the judgment and order dated 01.02.2011 passed in the
      criminal appeals. Consequently, these Criminal Miscellaneous Petitions
E     were filed, for open hearing, after law laid down by this Court in 2014
      dealing with the matter of death sentence in Moltd. Arif (supra).
            7. At the time of open hearing Ms. Kiran Suri, learned senior
      counsel appearing for the petitioner, submitted that she is confining her
      submissions only on the point of sentence of death, and pleaded for
 F    commutation of sentence to imprisonment for life. Referring to law laid
      down in Bae/tan Singlt v. State of Punj<tb [(1980) 2 SCC 684) and
      Macltlti Singh v. St<tte of Punjab [(1983) 3 SCC 470), following
      mitigating circumstances are pointed out on behalf of the petitioner: -
      (i)     The accused was young (aged about 30 years) at the time of
G             alleged incident.
      (ii)    The petitioner/accused left seven years boy (PW-2) unharmed.
      (iii)   The murder was not premeditated.
      (iv)    One of the Judges of the High Court, on sentence opined that the
              convict be sentenced to imprisonment for life.
H
    B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF                            445
           KARNATAKA [PRAFULLA C. PANT, J. ]

(v)      The case is of circumstantial evidence.                              A
(vi)     Previous criminal history is not of rape and murder.
       8. In addition to above, it is contended on behalf of the petitioner
(Review Applicant) that since no separate date for hearing on sentence
was given in the present case by the trial court, as such for violation of
Section 235(2) Cr.P.C., the sentence of death cannot be affirmed. We          B
have considered the argument of Ms. Suri. It is true that the convict has
a right to be heard before sentence. There is no mandate in Section
235(2) Cr.P.C. to fix separate date for hearing on sentence. It depends
on the facts and circumstances as to whether a separate date is.required
for hearing on sentence or parties feel convenient to argue on sentence
on the same day. Had any party pressed for separate date for hearing
                                                                               c
on the sentence, or both of them wanted to be heard on some other date,
situation could have been different. In the present case, the parties
were heard on sentence by both the courts below, and finally by this
Court, as is apparen! from the judgment under review. As such, merely
for the reason that no separate date is given for hearing on the sentence,     D
the Review Petition cannot be allowed.
      9. In Dagdu and ot/iers v. State of Maltaras/1tra1 Goswami, J.
observes as under: -                  ·
         "90. I would particularly emphasise that there is no mandatory
         direction for remanding any case in Santa Singh v. State of           E
         Punjab ((1976) 4 SCC 190) nor is remand the inevitable recipe
         of Section 235(2), Code of Criminal Procedure, 1973. Whenever
         an appeal Court finds that the mandate of Section 235(2), Cr PC
         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       F
         adequate opportunity to produce before it whatever materials he
         chooses in whatever reasonable way possible. Courts should avoid
         laws' delay and necessarily inconsequential remands when the
         accused can secure full benefit of Section 235(2), Cr PC even in
         the appeal Court, in the High Court or even in this Court. We
         have unanimously adopted this very course in these appeals."          G
  I 0. In another Three Judge Bench case in Tarlok Singli v. State of
Punjab 1 , at para 4, Krishna Iyer, J. writes: -

    ( 1977) 3 sec 68 (para 90)
1
2
    (1977) 3 sec 218                                                           H
446            SUPREME COURT REPORTS                            [2016] 5 S.C.R.


A           "4. In Santa Singh v. State of Punjab this Court considering
            Section 235(2), Cr PC held that the hearing contemplated by that
            sub-section is not confined merely to hearing oral submissions but
            extends to giving an opportunity to the prosecution and the accused
            to place before the Court facts and materials relating to the various
            factors bearing on the question of sentence and, if they are
B
            contested by .either side, then to produce evidence for the purpose
            of establishing the same. Of course, in that particular case this
            Court sent the case back to the Sessions Court for complying
            with Section 235(2), Cr PC. It may well be that in many cases
            sending the case back to the Sessions Court may lead to more
c           expense, delay and prejudice to the cause of justice. In such
            cases it may be more appropriate for the appellate Court to give
            an opportunity to the parties in terms of Section 235(2) to produce
            the materials they wish to adduce instead of going through the
            exercise of sending the case back to the trial court. This may, in
            many cases, save time and help produce prompt justice."
D
           I I. In Deepak Rai v. State of Bilmr-1, yet another Three Judge
      Bench case, Dattu, J. observes in paragraph 54 as under: -
            "54. Herein, it is not the case of the appellants that the opportunity
            to be heard on the question of sentence separately as provisioned
E           for under Section 235(2) of the Code was not provided by the
            courts below. Further, the trial court has recorded and discussed
            the submissions made by the appellants and the prosecution on
            the said question and thereafter, rejected the possibility of awarding
            a punishment Jess harsh than the death penalty. However, the
            High Court while confirming the sentence has recorded reasons
F           though encapsulated. The High Court has noticed the motive of
            the appellants being non-withdrawal of the case by the informant
            and the ghastly manner of commissi~n of crime whereby six
            innocent persons as young as 3 year old were charred to death
            and concluded that the incident shocks the conscience of the entire
G           society and thus deserves nothing lesser but death penalty."
            12. In the same case (Deepak R<li v. St<lte of Bilmr) quoting
      Lord Denning, this Court further observes: -
            "98. On the question of striking a delicate balance between the
            proportionality of crime to the sentencing policy, Lord Denning
H     '(2013)10SCC421
    B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF                                    447
           KARNATAKA [PRAFULLA C: PANT, J.]

       has observed' as follows on the very purpose of imposition of a                A
       punishment:
           ".; .. The punishment is the way in which society expresses its
        ·. denunciation of wrongdoing; and, in order to maintain respect
           for the law, it is essential that the punishment inflicted for grave
           crimes should adequately reflect the revulsion felt by the great           B
           majority or-citizens for them. It is a mistake to consider the
           objects of punishments as being a deterrent or reformative or
           preventive and nothing else . . . The truth is that some crimes
           are so outrageous that society insists on adequate punishment,
           because the wrongdoer deserves it, irrespective of whether it
           is a deterrent or not."                                                     c
       13. It is further submitted on behalf of the petitioner that though
the testimony of the child (PW-2) aged about seven years could be
sufficient for holding the petitioner guilty of offence for conviction but
the death sentence should not be imposed on the basis of testimony of
seven years old child. We are unable to accept this proposition. If the                D
statement of the witness, aged seven years, has been found natural,
trustworthy and without any chance of being tutored, it cannot be taken
lightly as mitigating circumstances, particularly, in the facts and
circumstances of the present case.
        14. It is further argued by Ms. Suri that the probability that the
                                                                                       E
accused would commit further criminal acts of violence and the probability
that the accused cannot be reformed are the two factors which the
State has not proved. It is further submitted that in the present case .if
the life sentence is commuted to imprisonment for natural life of the
petitioner, the above two factors would lose their significance since the
petitioner is going to remain in jail for the rest of his life. It is further          F
argued that it is not the accused who has to prove the mitigating factors
but it is for the prosecution to prove that the extreme penalty of death
needs to be inflicted. It is contended that the reasons given in the order
sought to be reviewed are not sufficient as to why life imprisonment is
an inadequate punishment.
                                                                                       G
       15. Ms. Kiran Suri, learned senior counsel for the petitioner
referred to the case Aftah Altmad Kltan v. State of HyderabatP, and
submitted that since two of the Hon'ble Judges hearing the matter of
4
 Ed.: Lord Denning, Master of the Rolls of the Court of Appeal in England, speaking
  to the Royal Commission on Capital Punishment in 1950
'AIR 1954 SC 436                                                                       H
448             SUPREME COURT REPORTS                             [2016) 5 S.C.R.



A     confirmation of death sentence, in the High Court, differed, as such on
      this ground alone, sentence of death can be commuted to imprisonment
      for life. However, in our opinion the case of AftabAllmad Kllan (supra),
      is of little help to the petitioner for the reason that in the present case the
      Hon 'ble Judge, who opined that the convict be awarded the sentence of
      imprisonment for life, himself observed that it is a case of rarest of rare
B     category, and it was further observed by him that by making the petitioner
      to serve imprisoT!ment for natural life, it will be more painful for him to
      serve the same. Our attention is also drawn to the case of Sut/1endraraja
      alias Sutllentllira Raja alias Santl1an and otllers v. State tllrougll
      DSPICBI, SIT, Cllennai6 • We have gone through the same and it is
      sufficient to say that the majority view in said case does not support the
c     argument advanced on behalf of the petitioner. The learned counsel for
      the petitioner also invited our attention to a recent unreported decision of
      this Court in Tuttu Lodhi@Pancham Lodhi Vs. State of Madhya Pradesh
      in Criminal Appeals Nos.292-293 of 201.4 decided on September 16,
      2016. In that case, the Court opined that the facts of the case did not
      make out a "rarest ofrare" case to confirm the death sentence. On that
D     basis, the Court proceeded to award sentence of imprisonment for total
      actual period of 20 years. But the facts of present case are different.
      And now we would discuss the aggravating circumstances of this case.
            16. Ms. Anitha Shenoy, learned counsel appearing for the
      respondent, pointed out following aggravating circumstances in support
E     of maintaining the death sentence: -
      (i)     The murder was committed by strangulating a defenseless woman,
              after raping her violently.
      (ii)    The petitioner committed robbery in addition to committing rape
              and murder.
      (iii)   The petitioner is not illiterate rustic villager, rather he is an ex-
F
              police official.
      (iv)    The convict/petitioner has a criminal history of 2 I cases, with
              seven convictions.
      (v)     After the incident, the emboldened accused-petitioner has
              committed another robbery within just two days and was arrested
G             by the police, as proved by PW-18 Siddagangaiah and PW-20
              L!l~shminarasappa.
      (vi)    Not only the antecedents of the accused are alarming, it is also a
              case where the accused fled twice from lawful custody which
              shows no chances of his reformation.

H     '(1999) 9 sec 323
     B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF                               449
           . KARNATAKA [PRAFULLA C. PANT, J. ]

       17. Ms. Shenoy further submitted that the petitioner was a police.         A
constable who was dismissed from service on 15 .02.1997 after he was
found guilty of misconduct. It is further stated that the petitioner, after
escaping from judicial custody on 18. 07 .1997, has committed the crime
in question on 28.02.1998 ..It is further submitted that the petitioner who
committed yet another crime ofrobbery on 02.03 .1998, i.e. within two
days after the present incident, was convicted in the subsequent case              B
also on 17 .OS .1999, and said conviction was affirmed by the appellate
court, and finally Special Leave Petition (Crl.) No ........ Of2011 (Crl.
M.P. No. 23691) was dismissed on 09.12.2011, by this Court.
       18. We have considered the mitigating and aggravating
circumstances mentioned above. The following chart of history of seven
convictions recorded against the petitioner is placed before us which              C
shows that there is little hope of rehabilitation and reformation of the
petitioner: -


S.      Police      Crim      Sessions     Conviction    Offences    Remarks
No.     Station     eNo.      cases        I ACQuittal                             D
I.     Peenya P.S. iOl/97     9'"ACMM      Convicted     454-380     RI for4
       B'lore City            Court CC                   !PC         years and
                              No.1358/97                             fine of
                                                                     Rs.5000/-
2.     uandhinagar 115197 ~rincipal      Convicted       224 IPC     S.I. for 2
       P.S.               PMFC Court,                                years and
                          Bellary                                    fine of       E
                          h:No.68/98                                 Rs.1000/-
3.     Peenya P.S. 108/98 !OTC 7, B'lore Convicted       376-392-    Death
       B'lore City        K:;ity                         302 IPC     sentence
                          SC No.
                           '25/99
4.     Peenya P.S. 111/98 ~re I, B'lore Convicted        394-511     RI for7
       ~'lore City        City                           IPC         years and     F
                          SCNo.417/01                                fine of
                                                                     Rs.2000/-
5.     Brucept P.S. 49/98 fMFC Court       Convicted     224 IPC     RI for3
       Bellarv            Bellarv                                    months
6.     Yeshwantha 96102 l'" Tr. Court      Convicted     41 Cl.(d)   RI for90
       pur P.S.           B'lore City                    102         days
       B'lore City                                       Cr.P.C.                   G
                                                         &379-
                                                         411-224
                                                         IPC
7.     Yelahanka      J9/99   2MMCourt Convicted         379 IPC     RI for6
       0 .S. B'lore           B'lore City                            months and
       City                   CC No.3 93 /03                         fine of
                                                                     Rs. 1000/-    H
450            SUPREME COURT REPORTS                          (2016] 5 S.C.R.



A             (We have not taken note of cases in which the petitioner was
      acquitted. However, it is also pointed out by learned counsel for the
      State ofKarnataka that the cases in which the petitioner was acquitted
      includes Sessions Case No. 40 of2000 relating to offences punishable
      under Sections 366A, 379, 376, 302 and 201 read with Section 34 !PC, in
      which case victim was pushed into a car, and after snatching her earrings,
B
      her legs were tied, and rape was committed before committing murder.
      In said case, which related to the incident of06.12. l 996, petitioner was
      acquitted vide judgment and order dated 07.08.2004. It is further
      submitted by the learned counsel that after arrest of the petitioner on
      17 .07 .1997, during custody in said case, on 18.Q? .1997 the petitioner
c     escaped from jail for which he was convicted on the charge under Section
      224 !PC.)
            19. Having gone through the criminal history of the petitioner, we
    are of the view that age of 30 years (at the time of incident), in the
    present facts and circumstances of the case cannot be a ground to show
D any kind of leniency on sentence. As far as the fact as to leaving PW-
    2 Suresh (seven years old child) unharmed is concerned, it is apparent
    that· actually the child was left unharmed not because of any compassion
    on the part of the petitioner. Rather he was on a hasty retreat from the
  · place of incident. The petitioner appears to have committed number of
    crimes and also escaped from the lawful custody before commission of·
E this crime. The worst is that the petitioner has committed crimes not
    only before the incident, but also within two days, subsequent to the
    incident, i.e. another robbery in connection with which he was
    apprehended by the public and handed over to the police: Taken together,
    all the above, reveals that the petitioner is a menace and has become
F threat to the society. On overall analysis of facts and circumstances of
    the case, gravity of the offence, and the manner in which the crime is
    committed read with the antecedents of petitioner who is an ex-police
    official, we do not find sufficient reason to review or modify the order of
    affirmation of death sentence in the present case.

G             20. Therefore, on careful comparison of aggravating and mitigating
       circumstances in the present case, as above, and keeping in view the
       principle of law laid down by this Court on the point, we are of the firm
       opinion that the aggravating circumstances are grave and far more serious
       as against the mitigating circumstances pointed out on behalf of the
      .Petitioner. As such, even after open hearing, we are not inclined to
H
  B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF                          451
          KARNATAKA [PRAFULLA C. PANT, J.]

allow the Review Petitions or modify the judgment and order passed by A
this Court in Criminal Appeal Nos. 285-286 of201 l dismissed by this.
Court on 01-02-2011. Accordingly the Review Petition (Criminal) Nos.
135-136of2011 stand dismissed. The Criminal Miscellaneous Petitions
stand disposed of.
Devika Gujral                                    Petitions disposed of.   B




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