Amendments to existing lawsLegislation Updates

After the Parliament approval, President of India, Ram Nath Kovind gave his assent for the Protection of Children from Sexual Offences (Amendment) Act, 2019, today, i.e. 05-08-2019.

Object of the POCSO Act, 2012:

The Protection of Children from Sexual Offences Act, 2012 (the said Act) has been enacted to protect children from offences of sexual assault, sexual harassment, and pornography and provide for the establishment of Special Courts for the trial of such offences and for matters connected therewith or incidental thereto.

Reason for approving the POCSO (Amendment) Act, 2019:

In the recent past incidences of child sexual abuse cases demonstrating the inhumane mind-set of the abusers, who have been barbaric in their approach towards young victims, is rising in the country. Children are becoming easy prey because of their tender age, physical vulnerabilities and inexperience of life and society.

There is a strong need to take stringent measures to deter the rising trend of child sex abuse in the country, the proposed amendments to the said Act make provisions for enhancement of punishments for various offences so as to deter the perpetrators and ensure safety, security and dignified childhood for a child. It also empowers the Central Government to make rules for the manner of deleting or destroying or reporting about pornographic material in any form involving a child to the designated authority.

Major amendments to incorporated and passed by the Parliament are as follows:

Sections Amended

POSCO Act, 2012

POCSO (Amendment) Act, 2019

Section (2)(1) [Addition of new clause] ‘(da) “child pornography” means any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child

Section 2 (b)

The words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860), the Code of Criminal Procedure, 1973 (2 of 1974), the “Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)” and the Information Technology Act, 2000 (21 of 2000) shall have the meanings respectively assigned to them in the said Codes or the Acts. The words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860), the Code of Criminal Procedure, 1973 (2 of 1974), the “Juvenile Justice (Care and Protection of Children) Act, 2015” (56 of 2000) and the Information Technology Act, 2000 (21 of 2000) shall have the meanings respectively assigned to them in the said Codes or the Acts.

Section 4 (1) [Punishment increased]

Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

Section 4 [Insertion of new sub-sections]

“(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine.

 

(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”

Section 5

Section 6 [SUBSTITUTED]

Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. “6. (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

 

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”

Section 9 [Insertion of new clause]

“(v) whoever persuades, induces, entices or coerces a child to get administered or administers or direct anyone to administer, help in getting administered any drug or hormone or any chemical substance, to a child with the intent that such child attains early sexual maturity;”

Section 14 [SUBSTITUTION]

“14. (1) Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine, and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.

 

(2) Whoever using a child or children for pornographic purposes under sub-section (1), commits an offence referred to in Section 3 or Section 5 or Section 7 or Section 9 by directly participating in such pornographic acts, shall be punished for the said offences also under Section 4, Section 6, Section 8 and Section 10, respectively, in addition to the punishment provided in sub-section (1).”

Section 15 [SUBSTITUTED]

“15 (1) Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees, and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees.

(2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.

(3) Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both, and in the event of second or subsequent conviction, with imprisonment of either description which shall not be less than five years which may extend to seven years and shall also be liable to fine.”

Section 34

Section 42

Where an act or omission constitutes an offence punishable under this Act and also under Sections 166-A, 354-A, 354-B, 354-C, 354-D, 370, 370-A, 375, 376, 4[376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB], “376-E or Section 509 of the Indian Penal Code” (45 of 1860), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. Where an act or omission constitutes an offence punishable under this Act and also under Sections 166-A, 354-A, 354-B, 354-C, 354-D, 370, 370-A, 375, 376, 4[376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB], “376E, section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 2000” (45 of 1860), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.

Section 45 [Re-lettered] sub-section (2) (a);

Addition of new clauses

“(a) the manner of deleting or destroying or reporting about pornographic material in any form involving a child to the designated authority under sub-section (1) of Section 15;

(aa) the manner of reporting about pornographic material in any form involving a child under sub-section (2) of Section 15;”.


Ministry of Law and Justice

[Notification dt. 06-08-2019]

Legislation UpdatesStatutes/Bills/Ordinances

Rajya Sabha passed the Protection of Children from Sexual Offences (Amendment) Bill, 2019, yesterday, i.e. 24-07-2019 with a death penalty provision for committing sexual crimes against children.

As reported by All India Radio, “Bill provides that those who use a child for pornographic purposes should be punished with imprisonment up to five years and a fine. However, in the event of second or subsequent conviction, the punishment would be up to seven years and fine.

The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including photographs, video, digital or computer-generated image indistinguishable from an actual child.

According to the amendment bill, those committing penetrative sexual assaults on a child below 16 years of age would be punished with imprisonment up to 20 years, which might extend to life imprisonment as well as fine.

In case of aggravated penetrative sexual assault, the bill increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.”


[Source: All India Radio]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench of J.K. Maheshwari and Anjuli Palo, JJ. partly allowed a criminal petition filed by a person accused of rape and murder of his minor daughter, and commuted his death penalty to life imprisonment.

In the instant case, the prosecutrix (since deceased) aged six years was the younger daughter of the appellant. She was residing with her mother and the appellant. The appellant was annoyed and having suspicion on his wife, Farida of questionable character. As he wanted to take revenge, he allured the prosecutrix with chocolates and used to commit unnatural intercourse and rape with his minor daughter. After committing the rape with the prosecutrix, he murdered her, hanged her from the ceiling with the help of a dupatta and then fled away from the spot. Police registered a case under Section 174 of the Code of Criminal Procedure, 1973. The DNA test report revealed that the DNA profile of appellant matched with the DNA profile present in the vaginal swab of the prosecutrix and sperms were also present in the vaginal swab. Due to the aforesaid evidence, police filed charge-sheet against the appellant under Sections 376, 377, 302 and 201 of the Penal Code, 1860 and Section 5(m) read with Section 6 of the Protection of Children from the Sexual Offences Act, 2012. Trial Court convicted the appellant and awarded him a death sentence. The matter was referred to this Court for confirmation of the death sentence under Section 366 (1) of CrPC. The appellant had challenged the findings recorded by the trial court by filing the separate appeal under Section 374 (2) of CrPC.

The learned counsel for the appellant, Surendra Singh and Siddharth Sharma argued that the dupatta which was used by the deceased for hanging herself was not examined at the time of postmortem. It was further contended that conviction could not be based only on the DNA and Forensic Science Laboratory (FSL) reports. Hence, the impugned judgment was liable to be set aside and the appellant was entitled to be acquitted from the charges leveled against him.

The learned counsel for the respondent/State, Som Mishra contended that the Trial Court had properly evaluated the evidence available on record and rightly convicted the appellant and awarded sentence befitting the crime. Hence, the appeal filed by the appellant was liable to be dismissed and allowing the criminal reference, the death sentence may be confirmed.

The Court stated that in the rarest of the rare cases, death sentence ought to be awarded. For this, the Court relied on the judgment of Supreme Court in the case of Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67, in which the Supreme Court had opined that the death sentence must be awarded where the victims were innocent children and helpless women, especially when the crime was committed in the cruelest and inhumane manner which was extremely brutal, grotesque, diabolical and revolting.

The Court drew a balance sheet of aggravating and mitigating circumstances to determine if the death penalty was adequate punishment. Aggravating circumstances: (i) extremely brutal, diabolic and cruel act; (ii) victim being six years was a minor and helpless; (iii) no provocation because the accused was in a dominating position; (iv) injuries were grievous with respect to sexual assault particularly in a case where the victim was the daughter of the appellant. Mitigating circumstances: (i) it was a case of circumstantial evidence; (ii) no evidence that the accused had the propensity of committing further crimes causing continuous threat to the society; (iii) no evidence to show that the accused could not be reformed or rehabilitated; (iv) other punishment options were open; (v) accused was not a professional killer or offender having any criminal antecedent; (vi) accused being a major having family with him, the possibility of reformation could not be ruled out.

Thus, the Court held that in place of the death penalty, the appellant undergoes life imprisonment with a minimum of 30 years of imprisonment (without remission) and fine of Rs 20,000. In default of payment of fine, the appellant had to undergo further rigorous imprisonment for six months. The conviction and sentences awarded under Sections 201, 377, 376 of IPC as awarded by the trial court were held to be just and hence, hereby maintained.

The criminal appeal filed by the appellant was partly allowed.[Afjal Khan v. State of Madhya Pradesh, 2019 SCC OnLine MP 1672, decided on 17-05-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. set aside the impugned judgment and conviction of the appellant by extending the benefit of doubt.

The prosecution’s case was hinged on the dying declaration made by the deceased Haji Muhammed Zamin Khan (complainant), in which he said that he was on his way back from a condolence meeting when the respondent herein fired upon him. After making this statement to the police, he succumbed to his wounds. The accused was arrested, convicted under Section 302 of Pakistan Penal Code, 1860 and sentenced to death. Peshawar High Court however altered the death penalty into imprisonment for life. Aggrieved by the said order, the present appeal was filed by complainant’s son.

The learned counsel for the appellant, Astagfirullah, contended that in the absence of any mitigating circumstance, there was no occasion for the learned High Court to alter the death penalty into imprisonment for life. Whereas learned counsel for the accused-respondent, Ghulam Mohyuddin Malik, questioned the legality of conviction on the ground that the case was founded primarily on a dying declaration and the prosecution miserably failed to show as to who recorded deceased’s last words and thus it was unsafe to maintain the conviction.

The Court noted that the statement of the deceased was recorded by Munawar Khan, one of the prosecution witnesses, who dictated it to Khan Ghalib Khan (another prosecution witness) to be recorded in the first information report. However, the second prosecution witness denied recording the first information report and thus it was unknown as to who had recorded the deceased’s last words.

It was observed that dying declaration is an exception to the general rule of direct evidence and it is admitted to the detriment of an accused without the opportunity of cross-examination upon the declarant under the belief that a person, face to face with God, would tell nothing but the whole truth. Therefore, it was held that prosecution must demonstrate beyond the shadow of a doubt that the dying declaration comprised of the words of declarant alone without extraneous prompting or additions. Thus, the person who recorded the dying declaration is the most important witness to verify its veracity. However, this person was missing in the present case.

In view of the above, the Court held that it was grievously unsafe to maintain the conviction and hence by extending the benefit of the doubt to the appellant, the appeal was dismissed and respondent was directed to be released.[Somaid v. Ali Gohar, 2019 SCC OnLine Pak SC 9, decided on 30-04-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of B.P. Dharmadhikari and Prakash D. Naik, JJ. allowed an appeal by a convict who was convicted for murder and voluntary throwing acid by a trial court under Sections 302 and 326-B of Penal Code, 1860 (herein ‘IPC’), and commuted his death sentence holding that the possibility of reformation, rehabilitation and social reintegration of young age convicts into society could not be neglected.

The victim was selected as Nursing Officer in Military Nursing Services and was supposed to join Naval office at Colaba, Mumbai. The accused-appellant, who had proposed to the victim, was rebuffed by her; and thus he threw sulphuric acid on her at Bandra railway station and fled from there. The victim succumbed to her injuries. A Special Women’s Court convicted the appellant for the offence of murder and sentenced him to death.  Appellant was also convicted for the offence of voluntary throwing acid and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs 5,000, in default to suffer rigorous imprisonment for six months. This was the first such case where an accused convicted for the acid attack was given the death penalty. Accused-appellant filed an appeal against this order.

The counsels for the appellant, Trideep Pais, Vijay Hiremath, Anshu Raj Singh and Sanya Kumar, argued that the evidence of eyewitnesses was not consistent with each other. The counsels also asserted that the incident occurred in few seconds as stated by the witnesses who saw the appellant momentarily raising doubt about their ability to identify as the identification test was conducted after eight months from the date of the alleged incident. The prosecution claimed that CCTV footage was collected but the same was not relied upon or exhibited on the ground that footage was not clear. However, nothing was put on record to prove that CCTV footage was unclear. CCTV footage was not sent to Forensic Science laboratory (herein ‘FSL’) nor played in the Court. He also argued that the alibi of the appellant was not considered. The benefit of doubt ought to have been given to the appellant as no evidence was established to show the presence of the appellant on the train boarded by the victim. Moreover, assuming that charges of murder were proved, the trial court should not have awarded the capital punishment as the case cannot be termed as rarest of rare case. Therefore, he asserted that sentencing exercise undertaken by the trial court was improper and against the mandate. Further arguing against the death sentence, it was contended that the appellant had no intention of murdering victim but only wanted to injure her.

Learned Special Public Prosecutor A.M. Chimalkar, with Siddharth Jagushte and Tusshar Nirbhavne submitted that the prosecution had established the charges under Sections 302 and 326-B of IPC beyond all reasonable doubt. There was sufficient evidence to prove the guilt of the appellant. The trial court had analyzed the evidence in detail and had given findings of involvement of the appellant in the crime. The eyewitnesses gave an ocular account of the incident and there was no doubt to discard their evidence. The appellant was identified by the witnesses. Furthermore, he argued that the medical evidence supported the case of the prosecution. Learned Special Public Prosecutor submitted that the trial court was right to award death penalty. According to him, the evidence adduced indicate aggravating circumstances justifying no other punishment except the death penalty. The crime was brutal. The trial court examined the reasons for awarding death to the appellant and gave strong reasons for convicting the appellant and interference in the decision was not warranted.

The Court observed that prosecution had established its case beyond reasonable doubt and there was nothing to doubt the authenticity of the evidence and the witnesses examined. Reliance was laid upon S.K. Hasan v. State of Maharashtra, 2003 SCC OnLine Bom 1167 to state that when the appellant had taken a specific plea of alibi, the burden was on him to establish the same. The appellant had not led any evidence to substantiate his plea of alibi. So in the absence of establishing the plea of alibi for cogent evidence, a necessary consequence of adverse inference had to be drawn. The documentary evidence adduced by the prosecution formed a significant part of the case and proved his involvement in the crime.

However, it was opined that the age of the appellant was 23 years at the time of the commission of a crime and that there was a possibility to reform. The Court took note of the ruling in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 to hold that a death sentence can be awarded only in the rarest of rare cases, only if an alternative option was unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death was irrevocable and irretrievable upon execution. The Court remarked, “It should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is concerned.” It took into consideration the material on record including overall personality, subsequent events to commute the sentence of death awarded to the appellant and directed that he should not be released from custody for rest of his normal life. Furthermore, the Court held that trial court relied on collective conscience to hold that the appellant deserved death penalty but ignored the fact that the appellant was of young age at the time of commission of offence and there was nothing to indicate that the appellant was beyond reformation and rehabilitation, as mandated in the case of Bachan Singh. Although the conviction of the appellant was confirmed, the death sentence was commuted to imprisonment for life. Hence, the appeal was partly allowed.[State of Maharashtra v. Ankur Narayanlal Panwar, 2019 SCC OnLine Bom 968, decided on 12-06-2019]

Hot Off The PressNews

According to the media reports, New Hampshire in a recent development abolishes capital punishment in the State.

“New Hampshire, which hasn’t executed anyone in 80 years and has only one inmate on death row, has become the latest US state to abolish the death penalty when the state Senate voted to override the governor’s veto.”

The Senate vote came a week after the 400-member House voted by the narrowest possible margin to override Republican Governor Chris Sununu’s veto of a bill to repeal capital punishment.

There has been no execution since 1939, and the repeal bill would not apply retroactively to the state’s only inmate on death row.


[Source: The Guardian]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.M. Shaffique and P. Somarajan, JJ. was hearing a death reference tagged along with a criminal appeal filed by the accused challenging order of the Sessions Judge vide which he was convicted and sentenced to be hanged by the neck till his death for offences under Sections 376, 302, 449 and 392 of the Indian Penal Code, 1860.

The accused respondent trespassed into the house of a minor girl aged 15 years, raped and murdered her; and thereafter committed theft of a gold necklace and a gold ring from her body. The Court observed that there was no eye-witness to the incident and the case rested purely on circumstantial evidence. However, scientific material showed that the DNA found in spermatozoa taken from victim’s vagina matched with the DNA profile of the accused. This clearly proved that the accused had raped the victim. Further, the missing chain and ring were recovered from a financier where the accused had pledged the same under a different name. Thus, the prosecution had proved all circumstances forming the chain beyond a reasonable doubt and the only hypothesis that could be arrived at by the Court was that the accused was involved in the crime.

It was noted that this was a case where the victim was subjected to forcible sexual intercourse, and lust and greed of the accused had resulted in rape and murder of a minor girl. However, the accused did not have any criminal antecedents; there was no pre-meditation and intention to commit crime would have developed all of a sudden. The offence might have been committed in a sudden rush of blood i.e., to commit robbery and rape. The accused, aged 29 years at the time of the incident, had married twice and had children.

In view of all the facts, it was opined that instead of the death penalty, the punishment of life imprisonment would meet the ends of justice. However, taking into account gravity of the offence, the Court relied on the dictum in Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 and held that no remission be granted to the accused for a period of 25 years. [State v. Rajesh Kumar, 2019 SCC OnLine Ker 43, Order dated 08-01-2019]

Case BriefsForeign Courts

Supreme Court of Zambia: This appeal was filed before a 3-Judge Bench comprising of Hamaundu, Kajimanga and Chinyama, JJS., where trial court had imposed the death penalty on the appellant for aggravated robbery under Section 294 (2) of the Penal Code.

Appellant was convicted and sentences for death penalty for the commission of robbery having offensive and dangerous weapons. The Trial Court had referred to a case of Simon Mudenda v. People, (1980) ZMSC 26 in which it was held that in case of aggravated robbery that is, where firearms or other offensive weapons are involved, it was mandatory to give death penalty and Court cannot consider any extenuating circumstances or pass any other order. Therefore, Trial Court gave him death penalty under Section 294(2) of the Penal Code. Appellant contended that he did not have any firearm with him and prosecution did not establish the presence of firearm with appellant.

Supreme Court on perusing all the witnesses found that one eye witness had seen appellant’s accomplice armed with a firearm and this fact was not contested. Two other eye witnesses had seen a plank kind of thing to have fallen from the appellant’s bag which later was found in the ballistic report to be the part of the firearm recovered from appellant. Thus, Trial Court had correctly convicted and sentenced appellant. Therefore, this appeal was dismissed. [Anania Tembo v. People, 2018 SCC OnLine ZMSC 3, dated 10-12-2018]

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