Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, MM Shantanagoudar and Indira Banerjee, JJ held

“it needs to be understood that prisoners tend to have increased affinity to mental illness. Moreover, due to legal constraints on the recognition of broad­spectrum mental illness within the Criminal Justice System, prisons inevitably become home for a greater number of mentally­ill prisoners of various degrees. There is no overlooking of the fact that the realities within the prison walls may well compound and complicate these problems.”

It said that the aspiration of the Mental Healthcare Act, 2017 was to provide mental health care facility for those who are in need including prisoners. The State Governments are obliged under Section 103 of the Act to setup a mental health establishment in the medical wing of at least one prison in each State and Union Territory, and prisoners with mental illness may ordinarily be referred to andcared for in the said mental health establishment.

The Court was hearing a case of a death row convict suffering from post-conviction mental illness. He is on death row since almost 17 years for rape and murder of 2 young girls. The Court was, hence, called upon to decide

• How culpability be assessed for sentencing those with mental illness?
• Is treatment better suited than punishment?\

The Court noticed that there are no set disorders/disabilities for evaluating the ‘severe mental illness’, however a ‘test of severity’ can be a guiding factor for recognizing those mental illness which qualify for an exemption. Therefore,

“the test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. These disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders­with schizophrenia.”

Test of severity of post-conviction mental disability

  • The post­conviction severe mental illness will be a mitigating factor that the appellate Court, in appropriate cases, needs to consider while sentencing an accused to death penalty.
  • The assessment of such disability should be conducted by a multi­disciplinary team of qualified professionals (experienced medical practitioners, criminologists etc), including professional with expertise in accused’s particular mental illness.
  • The burden is on the accused to prove by a preponderance of clear evidence that he is suffering with severe mental illness. The accused has to demonstrate active, residual or prodromal symptoms, that the severe mental disability was manifesting.
  • The State may offer evidence to rebut such claim.
  • Court in appropriate cases could setup a panel to submit an expert report.
  • ‘Test of severity’ envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that objectively the illness needs to be most serious that the accused cannot understand or comprehend the nature and purpose behind the imposition of such punishment.

Mitigation of sentence in case at hand

The Court noticed that the present accused has been reeling under bouts of some form of mental irritability since 1994, as apparent from the records placed before us. Moreover, he has suffered long incarceration as well as a death row convict. It is this state of ‘accused x’ that obliges the State to act as parens patriae. In this state ‘accused x’ cannot be ignored and left to rot away, rather, he requires care and treatment. The Court, hence, held,

“the petition is allowed to the extent that the sentence of death awarded to the Petitioner is commuted to imprisonment for the remainder of his life sans any right to remission.”

[‘X’ v. State of Maharashtra, 2019 SCC OnLine SC 543, decided on 12.04.2018]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, MM Shantanagoudar and Indira Banerjee, JJ has commuted the death sentence to 25 years’ imprisonment without remission in a case where the convict had raped and killed a 5-year-old girl. The Court said that there was scope of reformation considering that there was no prior offending history and also keeping in mind his overall conduct.

Factual background:

  • Child and her uncle travelled from their native place to the child’s school in the vehicle owned and driven by the accused
  • Uncle gave the custody of the child to the accused upon the assurance of the accused that he would take the child to school safely as had to pay his own daughter’s fees in the same school.
  • When the child did not return home that day an FIR was launched and the accused was apprehended after two days.
  • The school bag and the dead body of the deceased were recovered at the instance of the accused pursuant to the disclosure statement.
  • The accused also assigned a false explanation about leaving the company of the victim that he parted with the company of the child by leaving her at school and hence did not know what happened subsequently. However, the attendance register showed that the child had not come to school that day.

Aggravating/Mitigating Circumstances:

“life imprisonment is the rule to which the death penalty is the exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment, having regard to the relevant facts and circumstances of the crime.”

Considering all the aggravating and mitigating circumstances, the Court said that the accused has committed a heinous offence in a premeditated manner, as is indicated by the false pretext given to the victim’s uncle to gain custody of the victim.

“He not only abused the faith reposed in him by the PW4, but also exploited the innocence and helplessness of a child as young as five years of age. At the same time, we are not convinced that the probability of reform of the accused/appellant is low, in the absence of prior offending history and keeping in mind his overall conduct.”

With regard to the totality of the facts and circumstances of the case, the Court held that the crime in question may not fall under the category of cases where the death sentence is necessarily to be imposed.

Commuted Sentence:

Keeping in mind the aggravating circumstances of the crime as recounted above the Court said that the sentence of life imprisonment simpliciter would be grossly inadequate in the instant case. It hence, held:

“we deem it proper to impose a sentence   of   life   imprisonment   with   a   minimum   of   25   years’ imprisonment (without remission). The imprisonment of about four years as already undergone by the accused/appellant shall be set off. We have arrived at this conclusion after giving due consideration to the age of the accused/appellant, which is currently around 38 to 40 years.”

[Sachin Kumar Sighraha v. State of Madhya Pradesh, 2019 SCC OnLine SC 363, decided on 12.03.2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. AK Sikri, SA Nazeer and MR Shah, JJ has acquitted 6 death row convicts and has directed reinvestigation in a crime that was committed in June, 2003.

The Court was hearing the case where 5 people were brutally killed and a woman was raped. However, the accused were falsely implicated in the matter as they were all nomadic tribes coming from the lower strata of the society and are very poor labourers.

Lapse on part of investigating agency:

Noticing that an injured prime witness identified four named persons from the album of the photographs of notorious criminals but nothing was  on record whether those four persons were arrested or not or any further investigation was carried out with respect to those four persons, the Court said that there was a serious lapse on the part of the investigating agency, which has affected the fair investigation and fair trial, and therefore, the fundamental rights of the accused guaranteed under Articles 20 & 21 of the Constitution of India have been violated. It said:

“The benefit of the lapse in investigation and/or unfair investigation cannot be permitted to go to the persons who are real culprits and in fact who committed the offence.”

The Court, hence, directed the Chief Secretary, Home Department, State of Maharashtra to:

  • look into the matter and identify such erring officers/officials responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, real culprits are out of the clutches of law and because of whose lapses the case has resulted into acquittal in a case where five persons were killed brutally and one lady was subjected to even rape.
  • take departmental action against those erring officers/officials, if those officers/officials are still in service. The instant direction shall be given effect to within a period three months from the date of the order.

The Court also directed the prosecution to conduct further investigation under Section 173(8) against those four persons identified by the injured prime witness so that real culprits should not go unpunished.

Compensation to falsely implicated persons:

The Court also took note of the statement of a psychiatrist who had examined one of the accused who was subsequently found to be a juvenile. The juvenile had clearly opined that he has lived under sub-human conditions for several years. He was kept in isolation in solitary confinement with very restricted human contact and under perpetual fear of death. He was only allowed to meet his mother, and that too only infrequently. He was not even allowed to mix with other prisoners. Therefore, all the accused remained under constant stress and in the perpetual fear of death. As they were facing the death penalty, they might not have availed any other facilities of parole, furlon etc. All of them who were between the age of 25-30 years (and one of the accused was a juvenile) have lost their valuable years of their life in jail. Their family members have also suffered. Considering the aforesaid facts and circumstances, the Court directed:

“The State of Maharashtra to pay a sum of Rs.5,00,000/- to each of the accused by way of compensation, to be deposited by the State with the learned Sessions Court within a period of four weeks from today and on such deposit, the same be paid to the concerned accused on proper identification.”

[Ankush Maruti Shinde v. State of Maharashtra, 2019 SCC OnLine SC 317, decided on 05.03.2019]

Case BriefsSupreme Court

Supreme Court:

“The mercy petition is the last hope of a person on death row. Every dawn will give rise to a new hope that his mercy petition may be accepted. By night fall this hope also dies.” – Deepak Gupta, J

The 3-judge bench of NV Ramana, Deepak Gupta and Indira Banerjee, JJ commuted the death sentence of a man who was convicted for killing his wife and 5 children due to the the un­explained delay of 4 years in forwarding the mercy petition by the State of Madhya Pradesh leading to delay of almost 5 years in deciding the mercy petition.

The Court said that it has repeatedly held that in cases where death sentence has to be executed the same should be done as early as possible and if mercy petitions are not forwarded for 4 years and no explanation is submitted, it cannot but hold that the delay is inordinate and un­explained. The Court noticed:

“there not only was there a long, inordinate and un­explained delay on the part of the State of Madhya Pradesh but to make matters worse, the State of Madhya Pradesh has not even cared to file any counter affidavit in the Writ Petition even though notice was issued 4 years back on 18.11.2014 and service was effected within a month of issuance of notice.”

The Court also took note of the fact that the petitioner has now been behind bars for almost about 14 years as he was convicted on April 24, 2006. It, hence, held that regardless of the brutal nature of crime this is not a fit case where death sentence should be executed and it commuted the death sentence to life imprisonment. However, keeping in view the nature of crime and the fact that 6 innocent lives were lost, the bench directed that life imprisonment in this case shall mean the entire remaining life of the petitioner and he shall not be released till his death. [Jagdish v. State of Madhya Pradesh, 2019 SCC OnLine SC 250, decided on 21.02.2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The criminal appeal was filed before a Division Bench of P.K. Jaiswal and Anjuli Palo, JJ. by the accused to set aside the conviction and sentence passed under Section 363 of Penal Code and criminal reference to confirm death penalty awarded by First Addl. Sessions Judge, Nagod for a crime under Section 376(a)(b) of Penal Code.

Accused was convicted and was given death penalty for gruesome rape of a 4-year-old girl. Trial Court had charged the appellant under Sections 363, 376(a)(b) of Indian Penal Code and Section 5(j)(n) of Protection of Children from Sexual Offences Act. Trial Court had found him guilty. Appellant in this appeal challenged the findings of the Trial Court on the ground that there was no direct evidence against him and that its finding was contrary to the law and facts. The question before the court was whether the trial court had rightly convicted accused and whether this case comes under rarest of the rare category. High Court did not find any mistake while examining of the DNA and the testimony of the witnesses was also found to be reliable. Thus, Court viewed that Trial Court had rightly convicted appellant. Thereby, his conviction was maintained. Appellant urged that he was only aged about 28 years and had no previous criminal conviction.

High Court observed that a person who was performing the pious duty of a teacher had to nurture the character and morality in children and not commit a crime against them. Court after considering the facts and circumstances of the case along with the mitigating circumstances concluded that this case comes under the category of the “rarest of the rare case”. Therefore, this appeal was dismissed and sentenced to death penalty was affirmed. [Mahendra Singh Gond v. State of M.P., 2019 SCC OnLine MP 200, dated 25-01-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This reference was made before a Division Bench of P.K. Jaiswal and B.K. Shrivastava, JJ. by ASJ, District Sagar, along with the proceedings and record for confirmation of death sentence under Section 366(1) of the Code of Criminal Procedure 1973, while the Criminal Appeal was preferred by the appellant who was convicted by the judgment passed by the ASJ, for the offence under Sections 450, 376(2)(i), 376(D), 376(A) of IPC and Section 5(g)/6 of POCSO Act.

Prosecutrix was a girl who was raped and killed by appellant and a juvenile due to which she succumbed to her injuries and a case for murder under Section 302 IPC was filed. As a result of a trial conducted before ASJ, the appellant was convicted. The trial court after passing the judgment referred the case for confirmation of death sentence under Section 366 of Criminal Procedure Code. The appellant also filed the appeal against the judgment impugned. It was proved beyond reasonable doubt that the accused committed the offence but the question before Court was whether it was rarest of the rare case where the death penalty could be confirmed.

High Court found no mitigating circumstances in favour of appellant and observed that under the circumstances of this case the only punishment which the accused deserve is death, stating that this death sentence should be considered as a measure of social necessity and also a means of deterring other potential offenders. Therefore, on finding the case coming under rarest of the rare category, the death sentence awarded to the appellant by the Trial Court was affirmed. [Rabbu (Confirmation of Death Sentence), In re, 2019 SCC OnLine MP 161, decided on 17-01-2019]

Case BriefsHigh Courts

“It took me quite a long time develop the voice and now that I have it, I am not going to be silent.”

-Madeleine Albright

Bombay High Court: A Division Bench comprising of Ranjit V. More and Bharati H. Dangre, JJ. confirmed the death sentence awarded to the accused in the gruesome case of rape and murder of a 23 year old software engineer in Mumbai.

The incident

The victim was a software engineer working in Mumbai. She took a leave in December 2013 went to meet her parents in Andhra Pradesh. She was returning on 4 January 2014. Next morning, when her train was scheduled to reach Mumbai, her father attempted to contact her but without success. On the same day, a missing complaint was lodged with police. Thus began a frantic search for the victim. After 11 days, on 16 January, her half-burnt body was traced in the bushes on express highway.

The investigation

An FIR under Section 302 and 201 was registered. CCTV footage from Lokmanya Tilak Terminus was obtained which revealed that the victim walked out of the railway station on 5 January along with a stranger who was carrying her trolley bag. The man was identified as one Chandrabhan Sanap (accused) and was arrested. On his disclosure, articles belonging to the victim as well motorcycle on which she was driven to the crime spot was seized.

Prosecution case and the trial court decision

The accused was charged for abducting the victim on 5 January 2014 at 5.30 am from LTT Station on the pretext of dropping her at the hostel and thereafter he drove her on his bike to crime spot and committed rape on her. He was charged with Sections 364, 366, 376(2)(m), 376-A, 392 read with Section 397, 302 and 201 IPC. After the conclusion of the trial, the trial court convicted the accused and sentenced him to be hanged by neck till he is dead.

Confirmation case and appeal to the High Court

As per Section 28(2) CrPC, on imposition of death sentence, the matter has to be referred for confirmation of the High Court. The confirmation case was tagged with the appeal filed by the accused against the judgment of the trial court. The case of prosecution was based on circumstantial evidence and the prosecution had relied on 39 witnesses to establish its case along with several documentary evidence. After considering the evidence in detail including witness testimony, CCTV footage, DNA reports, post-mortem report, etc., the Court was of the opinion that prosecution was able to establish a complete chain of circumstances by cogent and reliable evidence. It was held that the prosecution had established the case against the accused beyond reasonable doubt.

Death Sentence

In order to decide the question of confirmation of the death sentence, the Court relied on Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and after praying due regard to both crime and criminal, drew a balance sheet of aggravating and mitigating factors. The Court observed,

” The way in which a society protects its victims of crime is a barometer of that society’s standards of human dignity and decency. When a woman in the society is raped, it is not only she who is subjected to rape, but it is the tendency that is reflected to overpower, to violate and to crash the dignity of the entire woman creed in the society.”

It was further observed that for a small pleasure, a young woman who had just stepped into womanhood was done to death with extreme vileness. The abhorrent, grotesque and perverted manner in which she was murdered by the accused was also taken note of. In Court’s specific opinion, although ‘reformative theory’ is recognised as one of the leading theory for imposition of penalty but undue stress on the same would defeat basic tenets of imposition of penalty where crime committed obnoxiously shocks the collective conscience of the society. Furthermore, merely because behaviour of accused as under-trial prisoner was good, could not be a ground to absolve him of the most gruesome act he committed. In the present case, the only fault of victim was that she fell prey to the sinister design of the accused to fulfill his lust. As such, the Court upheld the death sentence awarded to the accused holding it to be ‘rarest of rare’ case which amounts to the devastation of social trust, shocks social conscience and calls for extreme penalty of capital punishment.

Accordingly, the death sentence was confirmed and the criminal appeal filed by the accused was dismissed. [State of Maharashtra v. Chandrabhan Sudam Sanap, 2018 SCC OnLine Bom 6576, dated 20-12-2018]

Case BriefsSupreme Court

“While the crime is important, the criminal is equally important insofar as the sentencing process is concerned.”

-Madan B. Lokur, J.

Supreme Court: A Bench comprising of Madan B. Lokur, S. Abdul Nazeer and Deepak Gupta, JJ. commuted the death sentence awarded to the review petitioner to life imprisonment. The petitioner was convicted under Sections 376(2)(f), 377 and 302 IPC for rape and murder of a 3- year old girl. He was awarded death sentence by the trial court which was confirmed by Bombay High Court. Aggrieved thereby, he preferred an appeal before the Supreme Court which was dismissed. Now, the petitioner was before the Court for review of its judgment dismissing his appeal.

The Court was concerned with the order of death sentence awarded to the petitioner and focused its discussion on certain points including:

Circumstantial evidence

According to the petitioner, the case was based on circumstantial evidence. The Court held, “ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence. But there is no hard and fast rule.”

Reform, rehabilitation and re-integration into society

Harking back to Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the Court held that “Bachan Singh requires us to consider the probability of reform and rehabilitation and not its possibility or its impossibility… it is the obligation on the prosecution to prove to the court, through evidence, that the possibility is that the convict cannot be reformed or rehabilitated.”

DNA evidence

The Court laid stress on the usefulness of the advanced scientific technology and advised the prosecution to take advantage of it in such cases as the present one and stated, “where DNA profiling has not been done or it is held back from the Trial Court, an adverse consequence would follow for the prosecution.”

Prior history of the convict or criminal antecedents

After considering various earlier decisions, the Court held that mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding sentence.

In the instant case, the Court was of the opinion that the prosecution was remiss in not producing the available DNA evidence which lead to an adverse presumption against the prosecution. The trial court was in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the petitioner. Looking at the crimes committed by the appellant and the material on record including his overall personality and subsequent events, the Court commuted the sentence of death awarded by the petitioner while directing that he should not be released from custody for the rest of his normal life. the review petition was disposed of accordingly. [Rajendra Pralhadrao Wasnik v. State of Maharashtra,2018 SCC OnLine SC 2799, decided on 12-12-2018]

Case BriefsHigh Courts

Patna High Court: The Division Bench comprising of Rakesh Kumar & Arvind Srivastava JJ., while setting aside the order of death sentence, held that the appellant was not provided with the appropriate legal aid which he was entitled to.

According to the brief facts of the case, the appellant was convicted under Section 302 of IPC for the offence of murder of two children. For the stated offence he was convicted by relying on the 5 witnesses out of the 16 mentioned witnesses. It has been stated that the cross-examination of all the witnesses could not be held due to appellant’s financial condition being poor and not being able to afford legal assistance in that regard.

The Hon’ble High Court, observes that the trial court should have taken steps for providing legal aid at the expense of the government as the case of appellant went weak due to the failure of cross-examination of all the witnesses and thereby  Section 304 of CrPC has also not been complied in that regard. The court also observed that the primary witnesses were not examined by the prosecution which compels it to set aside the decision of the trial court and requires the High Court to remit back the matter.

The trial court has also been directed to take up the matter twice a week without any unnecessary delay as it holds a grave issue of the murder of two children, only then a logical end to this case would be attained. [State of Bihar v. Ram Prit Mandal,2018 SCC OnLine Pat 1080, order decided on  04-04-2018]

 

Case BriefsForeign Courts

Court of Appeal of Malaysia: The Bench comprising of Tengku Maimun Tuan Mat, JCA, Yaacob Haji Md Sam, JCA, Zabariah Mohd Yusof, JCA, affirmed the conviction and sentence to death in a case of possession of harmful and dangerous drugs.

In the present case, two appeals were combined on the same issue that was carrying of harmful and dangerous drugs named “Methamphetamine”. Both the convicts were convicted and sentenced to death for the offence of trafficking in dangerous drugs under Sections 39B(1)(a) and 39B(2) of the Dangerous Drugs Act 1952.

High Court’s analysis of the prosecution’s case was that the appellants were well aware of the fact of having drugs in their luggage and the reliance by the prosecution on Section 37(d) of the Act was proper. Consideration of the element of trafficking was invoked by Section 2 of the said Act. After the defence was put forward by the appellants it was found by the learned Judge that the defence was highly improbable and failed to raise any kind of reasonable doubt on the prosecution’s case, which resulted into their conviction and death sentence.

Court of Appeal did not find any appealable error on the part of the learned judge which the prosecution could establish. The important elements of the charge preferred against the appellants were:

* That the substance found were dangerous drugs as listed in the Act,

* Appellants were in possession of the said drugs,

* Appellants were trafficking in the said drugs.

Therefore, on finding no merits in the appeal filed, it was dismissed by confirming the conviction and sentence of the High Court. [Kong Rin (L) v. Public Prosecutor,2018 SCC OnLine MYCA 1, dated 08-05-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: While dismissing the appeals filed in regard to the commitment of heinous crime of gang rape and murder, the Division Bench of S.K Seth and Nandita Dubey JJ., pronounced death sentence to the convicts.

Once again the social fabric of the society was severely affected when the heinous offence of rape of an 11-year-old child and subsequently killing her took place in the most gruesome manner as it could have been possible.

According to the findings and observation of the trial court, it had after meticulous consideration of the records that were collected and the chain of events that occurred established that the accused committed the heinous crime of gang rape and murder of the deceased. Therefore, the trial court had found the accused guilty for offence punishable under Sections 376 A and 302-A IPC.

However, the High Court, while stating that when a case rests on circumstantial evidence, the Court has to be satisfied that the circumstances from which an inference of the guilt is sought to be drawn, must be cogently and firmly established and trial court had in the present case successfully established the chain of events and convicted the accused Bhagwani and Satish. Though unfortunately, the trial court failed to charge the accused for the offence under Section 377 IPC as clear evidence of carnal intercourse was attained in the post-mortem report. Therefore, the appeal was dismissed by confirming the death sentence awarded by the trial court to each of the accused. [In Reference (Received from District & Sessions Judge, Dindori (MP) v. Bhagwani,  2018 SCC OnLine MP 338,  dated 09-05-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: An interesting case came up before the High Court in which the sister of Balwant Rajoana (assassin of former CM of Punjab, Beant Singh) pleaded for commutation of his death sentence awarded to him in 2010 against which the prisoner himself never appealed, but accepted. He was ordered to be executed on March 31, 2012, but it was later stayed by the Home Ministry.

The petitioner’s counsel started the arguments by explaining the locus standi of the prisoner’s sister in this case and citing various judgments of Apex Court, said that the prisoner himself is inarticulate and unable to express himself and therefore, his sister can take up his cause for she has no personal gain in this.

To this, the Court clearly said that it is not true that the prisoner was not aware of his rights, rather he knew about his rights to defend himself during the trial but he deliberately chose not to seek any legal help. The Bench of Rakesh Kumar Jain, J. further went on to explain the concept of aggrieved person in criminal jurisprudence saying that the Supreme Court had rightly enumerated exceptions of filing a writ petition in the nature of habeas corpus or quo warranto or even by way of a public interest, but it denied fitting the case before them in any of the exceptions as it was the prisoner himself who denied to seek any legal help. [Kamaldeep Kaur Rajoana v. Union of India,  2017 SCC OnLine P&H 2983, decided on 07.11.2017]

Hot Off The PressNews

Supreme Court: In the plea seeking replacement of death by hanging, the Supreme Court has asked the Central Government to give a detailed response within 3 months on whether the Legislature can consider any mode other than hanging for the death convicts.

The Court said that the Constitution of India is compassionate and recognises the sanctity of life and hence, with the invention of various modes in modern time, legislature can think of other mode for death convicts, keeping in view the dynamic progress in science.

Source: ANI

Case BriefsHot Off The PressInternational CourtsNews

International Court of Justice at the Hague pronounced it’s verdict in favour of India. It said that the conditions required to indicate provisional measures are met, hence, it is appropriate to order that Pakistan should ensure that Kulbhushan Jadhav is not executed pending the final decision. The provisional order under Article 41(1) has binding obligation.

On the Jurisdiction of ICJ, the Court said that any reservation made in Bilateral Agreements cannot limit this Court’s jurisdiction under Vienna Convention. The provisions of Bilateral Agreement on Consular Access, 2008 do not expressly limit this Court’s jurisdiction. India has maintained at various times that Kulbhushan Jadhav should be given consular access, however, Pakistan maintained that it will be granted only if India provides assistance. It establishes that the Court has jurisdiction as the acts alleged by India are capable of falling under Article 36(1) of Vienna Convention. The alleged failure by Pakistan to allow communication and access to Kulbhushan Jadhav is enough to fall under provisions of Vienna Convention. Also, Vienna Convention does not exclude the persons accused of acts of espionage. Hence, the Court has prima facie jurisdiction to entertain the plea.

The Court said that the rights invoked by India under Article 36(1) of Vienna Convention are plausible. A link exists between rights claimed by India and the provisional measures being sought. The Court observed that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized inArticle 36(1) of the Vienna Convention, and that India has alleged violations of this provision.

On Irreparable prejudice and urgency of the matter, ICJ said that as far as that is concerned the mere fact that that Kulbhushan Jadhav might be executed is sufficient to indicate the urgency. Pakistan has indicated that any execution of Kulbhushan Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case It is not clear as to when he might be executed. Pakistan has given no assurance that he will not be executed before the Court renders it’s final decision.

India had, on 08.05.2017, initiated the proceedings before ICJ against the execution of the death sentence imposed upon an Indian National Kulbhushan Jadhav, alleging that Pakistan kidnapped Kulbhushan Jadhav from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan on 3 March 2016. On 09.05.2017, Judge Ronny Abraham, President of the ICJ  stayed the execution of Kulbhushan Jadhav under Article 74, paragraph 4, of the Rules of Court. Harish Salve and Khawar Qureshi represented India and Pakistan, respectively.

The hearing in the matter took place on 15.05.2017. Read the submissions by India and Pakistan, here.

Click here to read the order of the Court.

Case BriefsSupreme Court

Supreme Court: In the case where a 4-year old girl was raped and battered to death by the petitioner, the bench of Dipak Misra, R.F. Nariman and U.U. Lalit, JJ refused to review the death sentence imposed by the bench in Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253. The petitioner had allegedly lured the victim by giving her chocolates, kidnapped and raped her and had then caused crushing injuries to her with the help of stones weighing about 8.5 kg and 7.5 kg.

The review was sought on the grounds that after the Court awarded him death sentence via judgment dated 26.11.2015, the petitioner has completed Bachelors Preparatory Programme offered by the Indira Gandhi National Open University enabling him to prepare for Bachelor level study and that he has also completed the Gandhi Vichar Pariksha and had participated in drawing competition organized sometime in January 2016. It was also asserted that the jail record of the petitioner is without any blemish.

Rejecting the contention, the Court said that the aggravating circumstances namely the extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless girl of four years clearly outweigh the mitigating circumstances now brought on record. Hence, it was held that no case was made out to take a different view in the matter. [Vasanta Sampat Dupare v. State of Maharashtra, 2017 SCC OnLine SC 524, decided on 03.05.2017]

Case BriefsHigh Courts

Calcutta High Court: The Court recently had to decide on a death reference under Section 366 CrPC against the order of conviction under Section 302 IPC and sentence of death passed last year by the Court of Additional Sessions Judge, Hoogly. Also, the accused appellant had appealed against his conviction.

The accused was charged of killing his 26 year old wife and 7 year old son. The Court found that the victim lady was beaten and tortured since the day she entered her matrimonial home by her husband and other family members. Also, the accused threatened her to cut with chopper and both the victims were actually killed by slicing their throats with sharp weapon. Motive was clear and the weapon was recovered.

The accused was found guilty on trial relying on all the witnesses and circumstantial evidence proving his conviction beyond reasonable doubt on which he was awarded death sentence. The Division Bench of the High Court too agreed that the prosecution proved its case beyond reasonable doubt. The next important question that the Court had to decide in this reference was whether the punishment given commensurates with the offence and to ascertain this, the aggravating and mitigating circumstance needs to be considered.

The aggravating circumstances as noted by the Court were that the accused killed his own wife and child, that he had an affair with his sister-in-law and he killed the lady and child in response to the refusal to proposal of marriage by the sister-in-law, that he consumed country liquor in order to prepare himself to commit the brutal and cold-blooded murder and that he informed everyone that his wife was bitten by a snake after killing her.

The Court tried to consider the mitigating circumstances like the reason he consumed liquor knowing that in senses, he would not be able to do it observing that aggravating circumstances clearly outweigh the mitigating circumstances. The Court also considered it important to study from which the appellant came. It noticed that his background was neither defined nor refined. He was a truck driver, was accustomed to consumer liquor showing the strata of the society that he came from. The Court discussed that had he been educated, he could have found some other means of marrying her lady love.

The Court had to look into whether the case could be classified as rarest of rare case and cited Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56 wherein Supreme Court observed that the rarest of rare case comes when a convict is a menace and threat to harmonious and peaceful co-existence of the society. The High Court perceived that there was no reason to believe that the appellant couldn’t be rehabilitated and reformed and it doesn’t seem that he would continue with his criminal activities proving to be threat to society.

At the same time, the Court considered that his acts did not call for sympathy and awarded 30 years of sentence without remission as granted in  Swami Shraddananda (2) v. State of Karnataka(2008) 13 SCC 767State of U.P. v. Sanjay Kumar, (2012) 8 SCC 537 and Gurvail Singh @ Gala v. State of Punjab, (2013) 2 SCC 713. The death reference was accordingly dismissed. [State of West Bengal v. Lakhikanta Adhikary, 2017 SCC OnLine Cal 197, decided on 10th February, 2017]

Case BriefsSupreme Court

Supreme Court: Agreeing to hear the appeal against the capital punishment imposed on the convicts in the infamous ‘Nirbhaya’ case, the 3-judge bench of Dipak Misra, R. Banumathi and Ashok Bhushan, JJ allowed the accused persons to file affidavits along with documents stating about the mitigating circumstances.

It was argued that neither the trial Judge nor the Delhi Court had considered the aggravating and mitigating circumstances, as are required to be considered in view of the Constitution Bench decision in Bachan Singh v. State of Punjab, (1980) 2 SCC 684. It was further argued that Section 235(2) Cr.P.C. is not a mere formality and in a case when there are more than one accused, it is obligatory on the part of the learned trial Judge to hear the accused individually on the question of sentence and deal with him.

Accepting the contention, the Court noticed that there are two modes of dealing the matter at hand, one is to remand the matter and the other is to direct the accused persons to produce necessary data and advance the contention on the question of sentence. However, considering the nature of the case, the bench decided to go with the second mode.

The Court also allowed the prosecution to file necessary affidavits with regard to the circumstances or reasons for sustenance of the sentence. Additionally, the prosecution can also put forth any refutation, after the copies of the affidavits by the learned counsel for the accused persons within a week.

In addition to the above order, the Court also directed the Superintendent of Jail to submit a report with regard to the conduct of the accused persons while they are in custody. [Mukesh v. State for NCT of Delhi, 2017 SCC OnLine SC 90, order dated 03.02.2017]

Case BriefsForeign Courts

Pakistan Supreme Court: While dismissing the present petition seeking the leave to appeal against the decision of Lahore High Court which confirmed the conviction and death sentence awarded to the petitioner’s husband by the Additional Sessions Judge, Burewala; the three-Judge Bench of A.Z. Jamali, C.J., A.H. Muslim and Ijaz Ul Ahsan, JJ., held that schizophrenia is not a permanent mental disorder, and that it is more of a mental imbalance whose increase or decrease depends upon an individual’s level of stress.

The Court further held that schizophrenia does not fall under the definition of “mental disorder” as defined in the Mental Health Ordinance, 2001. The Court also referred to the two judgments of the Supreme Court of India, namely, Ram Narain Gupta v. Rameshwari Gupta, (1988) 4 SCC 247 where the Supreme Court of India had held that merely branding a person as schizophrenic will not be sufficient under the requirements of Section 13 (1)(iii) of the Hindu Marriage Act, 1955; for the purposes of the section “‘schizophrenia’ is what schizophrenia does”; and Amrit Bhushan Gupta v. Union of India, (1977) 1 SCC 180 wherein the Supreme Court of India thwarted the attempts of the convict to wrest himself free from the clutches of law by taking the plea of lunacy.
As per the facts of the present case, the petitioner’s husband Imdad Ali was awarded death penalty by the trial court which was subsequently upheld by the Lahore HC and the Supreme Court. The Mercy Petition of Imdad Ali was also refused by the President of Pakistan, as a consequence of which a Black Warrant was issued against him. The counsel for the petitioner argued that Imdad suffers from paranoid schizophrenia, therefore in consonance with the Prison Rules, 1978 before the execution of the black warrant he should get a treatment so that he can make his will. The Additional Advocate General, Punjab, vehemently refuted the rival contention.

Perusing the contentions and the facts, the Court deemed it fit to ascertain the meaning of “schizophrenia”. Referring to New Webster’s Dictionary, Wharton’s Law Lexicon and Oxford Advanced Learner’s Dictionary, the Court observed that schizophrenia has been defined as “psychotic disorder”, “a mental illness in which a person is unable to distinguish between the real and unreal”. Referring to the abovementioned case laws, the Court observed that Imdad’s plea of mental illness was discarded by all the Courts; the medical reports reveal Imdad to be a psychiatric patient. The Bench further observed that in the present matter all the relevant facts have been considered by the appropriate authorities and the Mercy Petition having been rejected by the President, there remains nothing for the Court to grant the petitioners leave to appeal. Finally the Court opined that the “rules related to mental sickness, are not subjugative to delay the execution of death sentence awarded to the convict”. [Safia Bano v. Home Department, Government of Punjab2016 SCC OnLine Pak SC 37; decided on 27.09.2016]

Case BriefsForeign Courts

Supreme Court of Pakistan: While deciding 16 petitions filed by civilians who had been convicted for terror related activities and had been given death sentence by the Field General Court Martial, a five judge bench comprising of Anwar Zaheer Jamali, C.J., Amir Hani Muslim, Azmat Saeed, Manzoor Ahmad Malik and Faizal Arab, JJ., upheld the death sentences observing that the petitioners could not prove that the trials by the FGCM were malafide with a collateral purpose.

In the instant case, the 16 petitioners were convicted by the Military Court (which was setup in the aftermath of the ghastly attack on a school in Peshawar) for conducting terrorist activities and threatening the security of Pakistan and attacking the military officers. The petitioners however contended that they have been subjected to secret trials without any legal assistance and that they have been deprived of the right to be represented by a lawyer of their own choice in violation of rights so guaranteed by Articles 10 and 10A of the Constitution of the Islamic Republic of Pakistan, 1973. On the contrary the respondents argued that each and every convict was given full opportunity to defend themselves. The option to engage a lawyer of their own choice was afforded and upon failure to take advantage of such option an Officer was deputed to defend them in terms of the Pakistan Army Act Rules, 1954.

Perusing the contentions, the Bench referred to the landmark decision of the Supreme Court of India in ADM Jabalpur v. Shivakant Shukla, (1977) 1 SCC 834, where it was observed that “between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular system of jurisprudence.” The Court further observed that the records clearly suggest that the FGCM was convened as per the provisions of the Pakistan Army Act and Rules, and the petitioners were unable to prove any kind of irregularity in this respect. It was further observed that the extraordinary circumstances which necessitated the institution of the FGCM, the act committed by the petitioners in the instant case clearly comes under the jurisdiction of the FGCM. [Said Zaman Khan v. Federation of Pakistan,  2016 SCC OnLine Pak SC 2 , decided on August 30, 2016]

Case BriefsHigh Courts

Bombay High Court: In a first sentencing of its kind, a bench comprising of Bhushan Gavai and Prasanna Varale, JJ. confirmed double death sentence and double life imprisonment in a case of rape and murder of a two year old girl by her uncle. The sentence was awarded under Section 376-A of the Penal Code, 1860  which was brought through the Criminal Law Amendment Act, 2014 after the gruesome Nirbhaya case. This section provides for death sentence for an offence of committing rape and inflicting injury which causes death or causes the woman to be in a persistent vegetative state.

Besides death sentence under Section 376A, the accused was awarded another death sentence under Section 302 of the Penal Code, 1860 for murder by the Yavatmal Sessions Court. He was also sentenced to two life terms under Section 376 (2) of the Penal Code, 1860 and Protection of Children from Sexual Offences Act (POCSO) 2012.

The Counsel for the accused, pleaded for leniency on account for his young age and poor family background and contended that there existed a possibility of him being rehabilitated and not committing any offence in the future.  However, the Court observed that these grounds cannot be mitigating circumstances in a case of such extreme depravity. Dismissing the plea, the Court observed that in the present case, the heinous and gruesome rape and murder of the child victim at the hands of the appellant/accused needs to be dealt with a deterrent punishment like death sentence. [State of Maharashtra vs. Shatrughna Baban Meshram, 2015 SCC OnLine Bom 5052, decided on 12-10-2015]