Case BriefsSupreme Court

“Society’s perspective is generally formed by the emotionally charged narratives, which need not necessarily be legally correct, properly informed or procedurally proper.”

Supreme Court: The Bench comprising of Kurian Joseph, Deepak Gupta and Hemant Gupta, JJ. partly allowed the appeals while modifying the death sentence to life imprisonment.

The present appeals in the case were filed against the order of the Chhattisgarh High Court which had confirmed the death sentence awarded by the Sessions Judge.

Factual matrix of the case draws a picture of the actual scenarios and events that happened and leads to the capital punishment to the appellant. In accordance with the facts of the case, appellant had entered the house of Anandram Sahu, Firanteen Bai, and Ratna Sahu and caused fatal injuries with a knife. Later, appellant entered the house of Durga Banchhor with a blood-stained knife while assaulting Meera Banchhor and inflicted grievous injuries.

For the above stated set of actions by the appellant, Sessions Court had convicted him for murder under Section 302 IPC, Section 307 IPC i.e. attempt to murder, Section 506(2) IPC for threatening to kill and house trespass under Section 450 IPC. For all the stated offences he was awarded death sentence in view of the case falling in the arena of “rarest of the rare” category. Further, High Court also confirmed the conviction, while stating that “aggravating circumstances in the present case outweighed the mitigating circumstances.”

The learned senior counsel for the appellant prayed that the death sentence imposed be commuted to imprisonment for life by putting forward his submissions.

The Supreme Court while laying down its decision stated that,

“High Court erroneously confirmed death penalty without correctly applying the law laid down in Bachan Singh v. State of Punjab, (1980) 2 SCC 684; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.”

Further, it stated that the highest punishment of death sentence in the present case does not fulfill the test of “rarest of rare case” where the alternative option is unquestionably foreclosed. Therefore, the Court held that the imposition of the death sentence was not the only option and hence the same needs to be modified to life imprisonment.“Till the time death penalty exists in the statute books, the burden to be satisfied by the judge in awarding this punishment must be high.” Appeals were partly allowed, commuting death sentence to life imprisonment.

Justice Kurian Joseph while delivering the judgment on behalf of the Court stated, “Having regard to the 262nd Report of the Law Commission that the constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being ‘arbitrarily and freakishly imposed’ and that capital punishment has failed to achieve any constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice. ”

He further observed, “It is also a matter of anguishing concern as to how public discourse on crimes have an impact on the trial, conviction and sentence in a case. The Court’s duty to be constitutionally correct even when its view is counter-majoritarian is also a factor which should weigh with the Court when it deals with the collective conscience of the people or public opinion.”

Interestingly, Deepak Gupta and Hemant Gupta, JJ. gave a supplementing opinion in which they agreed with Justice Kurian Joseph on all points except the observation in regard to the death penalty quoted above.[Channu Lal Verma v. State of Chhattisgarh,2018 SCC OnLine SC 2570, decided on 28-11-2018]

 

Case BriefsHigh Courts

Patna High Court: A Division Bench of Arvind Srivastava and Rakesh Kumar, JJ., upheld the judgment of the trial court and dismissed the appeal, but modified the death sentence of the appellant to a sentence of life imprisonment.

In the present case, the accused-appellant was charged with committing offences under Section 302 and Section 376 of the Indian Penal Code, and was also charged under Section 6 of the POCSO Act, for raping and murdering a six-year-old girl. The prosecution had provided a number of witnesses, including testimonial evidence from the informant, his wife, the investigating officer of the case, the medical officer etc., to substantiate the charges. The prosecution had also presented evidence which consisted of the blood-stained clothes of the appellant as well as the victim, the medical report containing the details of the injuries on the body and the possible cause of death.

Even though the appellant had denied all charges under which he was being tried, the defence did not present any evidence or bring any witnesses to repudiate the said charges. The claim by the defence that reliable witnesses had not been relied upon, the evidence presented had been compromised and that the presented witnesses were interested witnesses was rejected by the Court.

The Court decreed that in cases pertaining to rape and sexual assault, it was extremely unlikely that there would be any eye-witnesses. In light of the same, the Court held that the prosecution had conclusively proved beyond a reasonable doubt that the appellant had committed the offence of rape and then murdered the victim.

The High Court then reviewed the death sentence which was given by the trial court. The Court held that death sentence should be reserved for the rarest of rare cases, and since the appellant was a young man who had not committed any offence prior to the present case, the Court reduced the sentence of the appellant to that of life imprisonment, stating that it would serve the purpose which the offence committed by the appellant merited. [State of Bihar v. Hari Kishun Sada,2018 SCC OnLine Pat 1988, Order dated 02-11-2018].

Legislation UpdatesStatutes/Bills/Ordinances

Lok Sabha passed a bill seeking to replace Criminal Law (Amendment) Ordinance by placing a significant provision of death penalty to the convicts of rape of girls below the age of 12 years.

Minister of State for Home Kiren Rijiju stated that “Indian Penal Code provided for punishment to those convicted of raping a woman, but there was no provision for rape or gangrape of minor girls below 16 or 12 years of age. These are “very important provisions” which the government has proposed.

The bill stipulates stringent punishment for perpetrators of rape, particularly of girls below 12 years. Death sentence has been provided for rapists of girls less than 12 years. The minimum punishment in cases of rape of women has been increased from rigorous imprisonment of seven years to 10 years, extendable to life imprisonment.

This Bill would be a climacteric weapon in order to eradicate the menace of society.

[Source: PTI]

Case BriefsInternational Courts

Caribbean Court of Justice (CCJ): In the court of Sir Dennis Byron, President and Honourable Justice Saunders, Wit, Hayton, Anderson, Rajnauth-Lee and Barrow JJ. two death penalty cases from Barbados were addressed together as the appeals challenged the murder convictions of each of the men and the constitutionality of the mandatory death sentence for murder in Barbados. The Court took an epoch-making decision in light of striking the mandatory death penalty and stated that Section 2 of the Offences against the Person Act was unconstitutional because it provided for a mandatory sentence of death.

CCJ took a full-scale analysis of the state of the mandatory death penalty in Barbados for murder and found that it was undeniable that the nation, through its actions, had acknowledged that it had an obligation to remove such mandatory sentence under Section 2 of the Offences against the Person Act.

The mandatory death penalty had been found to be arbitrary in nature by international human rights bodies such as the International Covenant and Civil and Political Rights Committee (“ICCPR”) and the Inter-American Commission on Human Rights (“IACHR”) divesting individuals of the most fundamental human rights.

The CCJ held that Section 11 of the Constitution, which gives the right to protection of the law, was enforceable. Further, found that the mandatory death penalty breached the stated right as it deprived a court of the opportunity to exercise the quintessential judicial function of tailoring the punishment to fit the crime.

The Court by majority declared that Section 2 of the OAPA is inconsistent with sections 11 (c), 12 (1) 15(1) and 18(1) of the Constitution of Barbados to the extent that it provides for a mandatory sentence of death.

Therefore, CCJ ordered that the appellants be expeditiously brought before the Supreme Court for resentencing.[Jabari Sensimania Nervais v. Queen and Dwayne Omar Severin v. Queen (2018) CCJ 19 (AJ), decided on 27-06-2018]

 

Cabinet DecisionsLegislation Updates

In a major development against the increasing incidents of child rapes in the country, the Union cabinet, on 21-04-2018, cleared the ordinance on POCSO Act. The ordinance will give the death penalty to those convicted of raping a child up to 12 years of age. The Centre has cleared the criminal law amendment ordinance and POCSO Act is a part of this amendment. The demand for the death penalty to child rapists took centre stage after the two separate cases of gangrape and murder emerged from Jammu’s Kathua and Uttar Pradesh’s Unnao. With the incidents of minor rape cases on the rise, the ordinance will be effective in amending the POCSO (Protection of Children from Sexual Offences) Act. As per the current POCSO law, the minimum punishment for “aggravated assault” is 7 years in jail and maximum is a life sentence. The Centre is also inclined towards amending the penal law in order to introduce death penalty to sexual abusers of children up to 12 years of age.

Case BriefsHigh Courts

Delhi High Court: The recent judgment passed by a bench comprising of S. Muralidhar and I. S. Mehta,JJ., held that ‘life imprisonment’ should be awarded when the accused has a chance of rehabilitation and reformation.

The brief facts of the case being that three accused namely Ravi Kapoor (A-1), Amit Shukla (A-2 ) and Baljeet Malik @ Poppy (A-3), were convicted for the killing of Jigisha Ghosh, daughter of J.N. Ghosh, following which the three accused were charged under the Sections (364/302/201/394/468/471/482/34 of IPC) and A-1 was additionally charged for the offence under Section 25 of the Arms Act.

The deceased had been working as an Operations Manager in Hewitt Associates Private Limited for the last 5 years prior to her death, and on 18th of March, 2009, she was abducted by the three accused, and further a series of events unfolded when the accused started using the ATM card of the deceased, as a result of which the police was able to track them down based on their ATM card transaction details.

The Trial Court awarded death penalty to A-1 and A-2, along with fine and simple imprisonment for 6 months, and had further awarded life imprisonment to A-3, along with fine, as a consequence of which, the three accused filed individual appeals questioning their conviction, before the present court. This Court while passing its judgment relied on landmark cases like Gurvail Singh v. State of Punjab [(2013) 2 SCC 713], Bachan Singh v. State of Punjab [(1980) 2 SCC 684 : AIR 1980 SC 898], where the court held that “life sentence is the rule and death sentence the exception”.

Further reliance was placed on Aloke Nath Dutta v. State of West Bengal [(2007) 12 SCC 230] and Mohinder Singh v. State of Punjab, (2013) 3 SCC 294 : AIR 2013 SC 3622, where the Apex Court observed that-

“the doctrine of ‘rarest of rare’ requires two aspects to be satisfied:

· First being, the case must fall under the ambit of ‘rarest of rare’ and

· Secondly, if the alternative option is unquestionably foreclosed, i.e. death penalty should be the last resort, and to be looked to only when alternative punishment of life imprisonment is futile and serves no purpose”.

Furthermore, this Court observed that-

“in life sentence, there is a possibility of achieving deterrence, rehabilitation and retribution in different degrees. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore, puts an end anything to do with the life. This is the big difference between two punishments. Thus, before imposing death penalty, it is imperative to consider the same”.

Hence, with the above observation, this Court held that the following case does not fall under the ambit of ‘rarest of rare’ case and thus, commuted the death penalty awarded by trial court into life imprisonment for the accused (A-1 and A-2). [State v. Ravi Kapoor,  2018 SCC OnLine Del 6400, decided on 04.01.2018]

Case BriefsSupreme Court

Supreme Court: Almost after 5 years of the commission of the horrendous crime that shook not only the nation but the world, the Court upheld the death penalty of the 4 accused persons in the Nirbhaya rape and murder case, where a 23-year old girl was gangraped and tortured in a moving bus in Delhi on 16.12.2012. She succumbed to her injuries 13 days later in a hospital in Singapore. The Court said that It sounds like a story from a different world where humanity has been treated with irreverence.

Writing down a 429 page long judgment, the Court noticed that attacking the deceased by forcibly disrobing her and committing violent sexual assault by all the appellants; and insertion of rod in her private parts that, inter alia, caused perforation of her intestine which caused sepsis and, ultimately, led to her death, shows that the accused persons had found an  object for enjoyment in her and, as is evident, they were obsessed with the singular purpose sans any feeling to ravish her as they liked, treat her as they felt and the gross sadistic and beastly instinctual pleasures came to the forefront when they, after ravishing her, thought it to be just a matter of routine to throw her alongwith her friend out of the bus and crush them. The Court said that the casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable.

R Banumathi, J, emphasizing upon the need for actions against the crime against women, said that the offences against women are not a women’s issue alone but, human rights issue. Increased rate of crime against women is an area of concern for the law-makers and it points out an emergent need to study in depth the root of the problem and remedy the same through a strict law and order regime. There are a number of legislations and numerous penal provisions to punish the offenders of violence against women. However, it becomes important to ensure that gender justice does not remain only on paper. She added that public at large, in particular men, are to be sensitized on gender justice.

The Trial Court awarded capital punishment to the accused considering the gruesome manner in which the offence was committed and the Delhi High Court had upheld the decision of the Trial Court. Ram Singh, the prime accused, had committed suicide in his cell in Tihar Jail in the year 2013.

On 03.02.2017, 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. However, after consciously and anxiously weighing the aggravating circumstances and the mitigating factors, the Court held that the aggravating circumstances outweigh the mitigating circumstances now brought on record. [Mukesh v. State for NCT of Delhi, (2017) 6 SCC 1, decided on 05.05.2017]

Case BriefsSupreme Court

Supreme Court: In the case where death penalty was sought for a man who allegedly set his 7-month pregnant wife on fire by pouring kerosene oil and also threw their 3-year-old son on the burning body of the deceased, the bench of P.C. Ghose and R.F. Nariman, JJ refused to award death penalty and held that confinement till natural life of the accused shall fulfill the requisite criteria of punishment in peculiar facts and circumstances of the case.

In the present case, the medical evidence had proved that the deceased met an unnatural death. Considering the fact that there is no other eye-witness to the incident as the accused and the deceased were alone at the house at the time of commission of offence, the Court noticed that the failure on the part of the accused to explain how his pregnant wife and their minor child met with unnatural death due to burn injuries sustained at their house leads to an inference which goes against the accused. The Court also took note of the the dying declarations of the deceased with consistent allegations about demand of dowry and modus operandi of the offence which resulted into the death of the declarant and her minor child and held that it is evident that each of the circumstances had been established, the cumulative effect whereof would show that all the links in the chain are complete and the conclusion of the guilt is fully established.

However, based on the recommendation of the Law Commission of India in the Report Number 262 where the abolition of death penalty for all the crimes other than terrorism related offences and waging war (offences affecting National Security) was recommended, the Court said that capital punishment has become a distinctive feature of death penalty apparatus in India which somehow breaches the reformative theory of punishment under criminal law and hence, refused to award the same in the peculiar facts and circumstances of the present case. [State of Maharashtra v. Nisar Ramzan Sayyed, 2017 SCC OnLine SC 356, decided on 07.04.2017]

 

Case BriefsForeign Courts

Supreme Court of United States: The Court by a majority of 6:2 reversed the decision of the Arizona Supreme Court where the Court rejected defendant’s alternative argument that the trial court had violated Simmons . The Court held that the accused has a right to bring his parole ineligibility to the jury’s attention.

In this case the Arizona Supreme Court confirmed that parole was unavailable to defendant because under Arizona laws “parole is available only to individuals who committed felony before January 1, 1994” and here defendant has committed his crimes in 2001. However, in Simmons v. South Carolina, 512 U.S. 154(1994), it was held “where a capital defendants future dangerously is at issue, and the only sentence alternative to death available to the jury is life imprisonment without the possibility of parole” the Due Process Clause “entitles the defendant to inform the jury of his parole ineligibility either by a jury instruction or in argument by the council.” Hence Simmons establishes defendant’s right to inform his jury of the fact. But the Arizona Supreme Court held that “the failure to give Simmons instructions was not an error” which was reversed by the Court observing that the due process entitled the defendant to rebut the prosecution’s arguments that the defendant posed a future danger by informing his sentencing jury that he is parole ineligible.  Moreover, the Court also rejected the Arizona Supreme Court’s holding that Lynch might yet receive parole in the future because the legislature could liberalize parole laws and noted that “the potential for future ‘legislative reform’ could not justify refusing a parole-ineligibility instruction. If it were otherwise, a State could always argue that its legislature might pass a law rendering the defendant parole eligible.”  Thomas and Alito, JJ., gave the dissenting opinion, [Shawn Patrick Lynch v. Arizona, 578 U.S __ (2016), decided on 31.5.2016.]

Case BriefsForeign Courts

Supreme Court of United States: Ruling that prosecutors in Georgia violated the Constitution by striking every black prospective juror in a death penalty case against a black defendant, the Court by a majority of 7 to 1 reversed the order of the Georgia Supreme Court and held that the prosecutors of the State were motivated in substantial part by race when they struck the jurors from the jury 30 years ago. The Court further concluded, ‘considering all of the circumstantial evidence that bears upon the issue of racial animosity, we are left with the firm conviction that the strikes of the two jurors were motivated in substantial part by discriminatory intent’. Thomas, J., filed a dissenting opinion.

In the instant case the petitioner was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State exercised peremptory strikes against all four black prospective jurors qualified to serve. Petitioner argued that the State’s use of those strikes was racially motivated, in violation of the decision in Batson v. Kentucky, 476 U. S. 79 (1986). The trial court and the Georgia Supreme Court rejected petitioner’s Batson claim. Petitioner then sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, renewing his Batson objection. That court denied relief, and the Georgia Supreme Court declined to issue the Certificate of Probable Cause necessary under Georgia law for Foster to pursue an appeal. Hence the present appeal.

Roberts, C.J., delivering the opinion of the Court, held, the decision given by the courts above that the petitioner failed to show purposeful discrimination was clearly erroneous. The Court further observed that evidence that a prosecutor’s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination. Such evidence was compelling with respect to the two jurors and, along with the prosecution’s shifting explanations, misrepresentations of the record and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was “motivated in substantial part by discriminatory intent.” [Foster v. Chatman, 578 U. S. ____ (2016), decided on 23.05.2016]

Supreme Court

Supreme Court: In the wake of the divergent views expressed earlier by the Division Bench of A.R. Dave and Kurian Joseph, JJ., in the petition concerning the death warrant of Yakub Memon, the three judge bench of Dipak Misra, Amitav Roy and P.C. Pant, JJ., dismissed the petition for lack of merits and held that there is no flaw or fault in the Curative Petition that was decided by the three senior most judges on 21.07.2015 and the issuance of the death warrant by the TADA Court on 30.04.2015.

The petitioner, who is one of the accused in the 1993 Mumbai Blasts Case, was awarded death sentence for his involvement. Appearing for the petitioner, Raju Ramachandran and Anand Grover contended that the curative petition was not decided as per the directions given by the Constitution Bench in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, and that the requirement of sending the petition to three senior most judges and judges of the bench who passed the judgment affecting the petition, was not complied with. On the contrary, Attorney General Mukul Rohatgi contended that, it is the prerogative of the Chief Justice to appoint other judges if the judges of the judgment “complained of” are not available. He further put forth that the decision thus taken by the Chief Justice and two senior most judges on the curative petition would not be rendered void.

Before dismissing the petition, the Court shed some light upon the diverse views expressed by the Division Bench of A.R. Dave and Kurian Joseph, JJ. As per Dave, J. the petitioner had exhausted all the available remedies, therefore the petition did not hold any merit. However Kurian, J. raised questions over the procedure followed by the Court to decide the curative petition, and held that the petitioner’s right under Article 21 of the Constitution has been violated.

The present 3- judge Bench disagreeing with Kurian, J. observed that the procedures regarding the hearing of a curative petition has been duly followed by this Court for the judges who delivered the original judgment admittedly were not available in the office. The Court further observed the remedies sought by the petitioner to seek a commutation of his sentence, and held that ample time had been provided to the petitioner after the rejection of his Mercy Petition by the President and that he had exhausted every legal remedy available. The Court thus held that the issuance of death warrant was in order and was not marred by infirmities. Yakub Abdul Razak Memon v. State of Maharashtra, decided on 29.07.2015

High Courts

Bombay High Court: In a recent judgment, a bench comprising of VK Tahilramani and IK Jain, JJ has confirmed the death penalty to a man who was convicted for raping and killing a minor school girl. In the present case, the victim used to go on foot to her school and on the unfortunate day, she was returning alone from her school. The accused who was just 22 years old, took this opportunity  to rape and brutally assault the girl in a remote place where there was nobody to protect her. After satisfying his lust he killed her as he thought she might expose him and buried her body in a naked condition in a ditch. Earlier, a Sessions Court convicted him under S. 302 of the IPC and sentenced him to capital punishment. He was also convicted under various sections of the Protection of Children from Sexual Offences  Act, 2012.

The Court noted the fact that the offence was pre planned and not committed at the spur of the moment. The subsequent conduct of the accused indicated that he had felt no remorse. After commission of crime, he was found coolly wandering in the village. The Court observed that the modus-operandi to commit the crime by resorting to diabolical method exhibited depravity, degradation and uncommon nature of the crime which had shocked the collective conscience of the community as well as the villagers who are required to send their minor girls to another village for education, in the era in which right to education is the constitutional guarantee. The Court called the crime an ultimate insult to womanhood  and stated that the modus-operandi of the accused clearly shows that he would be a menace to the society and there is no possibility of the accused being reformed and thereby confirmed the death penalty. State of Maharashtra vs. Viran Gyanlal Rajput, 2015 SCC OnLine Bom 380decided on 16-02-2015

High Courts

Bombay High Court:  Rejecting the plea of insanity, a division bench comprising of VM Kanade and PD Kode,  JJ confirmed death penalty to a former State Transport bus driver who had killed 9 persons and injured another 36 in a “road rage” incident in Pune in 2012. Defending the accused, advocate  Jaideep Mane relied on the defence of insanity under Section 84, IPC contending that the accused had been undergoing psychiatric treatment prior to this incident. The Court, however rejected the argument observing there wasn’t enough evidence to prove that the accused was suffering from a serious mental disorder when he committed the act and that the evidence produced by the psychiatrist was “not reliable.” The  Bench also observed that mere prior incidence of treatment was not sufficient and it has to be established that at the time of commission of an offence, the accused was of unsound mind and was incapable of understanding the consequences of his action. Relying on the case of State of Maharashtra vs. Sindhi  alias Raman (1987) 89 BOMLR 423, the judges stated that they were concerned with legal insanity and not medical insanity and the evidence did not show the accused’s cognitive faculties were completely or gravely impaired.

 

In the present case, the accused had requested the Assistant Traffic Controller of Swargate Depot to change his shift from night to day which was declined. In a fit of rage he walked out of his office and went to a bus which was  standing in the depot  and hijacked it. He took two rounds in the bus depot and crushed to death 2 to 3 people inside the depot. Later he drove the bus out of the depot on the circuitous route of about 14 to 16 kilometers. He killed another 6 people in the process of driving the vehicle in the most reckless manner, grievously injured 36 persons some of whom were now permanently disabled and also damaged public property by driving the bus over rickshaws, scooters, cars, electric polls until he was finally stopped and apprehended by a policeman who entered the bus from one of the windows and successfully stopped the vehicle. The entire episode lasted for about 45 minutes.

The Court while confirming the death sentence observed that such a dastardly and inhuman act cannot be condoned on the premise that when society inflicts insults and injuries on a person, it gives right to individuals to take revenge against the society and its innocent members either on account of assumed religious sanction or individual retribution of wrongs done to him. The Court also observed that as long as death penalty remains on the statute book, they have to carry out this task of deliberating whether death penalty was justified in a particular case and in this case they felt that it was. Therefore, they had to do this unpleasant task of upholding the death penalty though they concur with some of the views expressed by the people who advocate abolition of death penalty from the statute book. State of Maharashtra vs. Santosh Maruti Mane, Confirmation Case No. 2 of 2013, decided on September 9, 2014

To read the full judgment, refer SCCOnline