B.A. UMESH versus REGISTRAR GENERAL, HIGH COURT OF KARNATAKA

Citation: [2016] 5 S.C.R. 438 · Decided: 03-10-2016 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Disposed off

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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[2016] 5 S.C.R. 438 
B.A. UMESH 
v. 
REGISTRAR GENERAL, HIGH COURT OF KARNATAKA 
(Criminal Misc. Petition Nos. 4213-4214 of2016) 
IN 
(Review Petition (Criminal) Nos. 135-136 of201 I) 
IN 
(Criminal Appeal Nos. 285-286of2011) 
OCTOBER 03, 2016 
[RANJAN GOGOi, PRAFULLA C. PANT AND A.M. 
KHANWILKAR, JJ.) 
Code of Criminal Procedure, 1973: s.235(2) - Hearing on 
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 
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 
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 
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 
438 
B.A. UMESH v. REGISTRAR GENERAL, HIGH COURT OF 
KARNATAKA 
and handed over to the police - Taken together, the petitioner is 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 
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. 
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 
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 
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 
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 
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 
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SUPREME COURT REPORTS 
[2016) 5 S.C.R. 
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

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