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, REVIEW PETITION (CRL.) NO.591 OF 2014, decided on 21.02.2019]

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 BriefsHigh Courts

“The mass killings of Sikhs in Delhi and elsewhere in November 1984 were in fact ‘crimes against humanity’. They will continue to shock the collective conscience of society for a long time to come.”

Delhi High Court:A Division Bench comprising of S. Muralidhar and Vinod Goel, JJ. decided Sajjan Kumar’s fate in the infamous 1984 Sikh riots case. On CBI’s appeal, the reversed the acquittal by the trial court of Sajjan Kumar, former Member of Parliament and sentenced him to imprisonment for life. Present appeals were directed against the judgment dated 30-04-2013 passed by the trial court acquitting Sajjan Kumar of the offences of criminal conspiracy and abetment while, at the same time, convicting other 5 accused.

Background

Following the assassination of Mrs Indira Gandhi, the then Prime Minister of India, on the morning of 31-10-1984 by two of her Sikh bodyguards, a communal frenzy was unleashed. For the next four days, all over Delhi, 2,733 Sikhs were brutally murdered. Their houses were destroyed. In the rest of the country too thousands of Sikhs were killed. The present appeals arise as a result the investigation by the CBI into the killing of five Sikhs in the Raj Nagar Part 1 area in Palm Colony in South West Delhi on 1-2-November 1984 and the burning down of a Gurudwara in Raj Nagar Part II. Six accused, including Sajjan Kumar, were sent up for trial in 2010. Three years later, the trial court convicted five of the accused for the offences of armed rioting and murder. Sajjan Kumar stood acquitted of all offences. The convicted accused, as well as the CBI, appealed to the High Court.

Charges

Sajjan Kumar was chawed for entering into criminal conspiracy with other accused and being principal offender and abettor in commission of offences including rioting, murder, house trespass, dacoity, promoting enmity between different groups grounds of religion. defiling place of worship, etc.

Witnesses

The accused were brought to justice primarily on account of the courage and perseverance of three eyewitnesses, Jagdish Kaur whose husband, son and three cousins were the five killed; Jagsher Singh, another cousin of Jagdish Kaur; and Nirpreet Kaur who saw the Gurudwara being burnt down and her father being burnt alive by the raging mobs. It is only after the CBI entered the scene, that they were able to be assured and they spoke up.

Failure to register FIR and unsatisfactory investigation

According to the Court, there was an abject failure by the police to investigate the violence which broke out in the aftermath of the assassination of Mrs Indira Gandhi. There was an utter failure to register separate FIRs with respect to the five deaths that from the subject matter of the present appeals. It was observed, “circumstances establish apathy of Delhi Police and their active connivance in the brutal murders being perpetrated”.

Extraordinary case

In Court’s own words, “This was an extraordinary case where it was going to be impossible to proceed against A-1 in the normal scheme of things because there appeared to be ongoing large-scale efforts to suppress the cases against him by not even recording or registering them. Even if they were registered they were not investigated properly and even the investigations which sawing progress were not carried to logical end of a charge sheet actually being filed.”

Sajjan Kumar’s involvement in conspiracy

The High Court was of the view that the trial court completely omitted to address the charges of conspiracy despite detailed arguments submitted by the CBI. Holding the witness record to be unshakably true, the Court observed, “there was detailed planning and the witnesses have spoken about seeing some of the political leaders walking around with lists in order to identify the houses of Sikhs. Without such careful planning, the scale of violence, destruction, and the loss of lives could not have been brought about.” The Court held Sajjan Kumar’s involvement was proved in light of the evidence that came on record and specially the witness deposition wherein express and categorical terms they testified to have seen Sajjan Kumar instigating the crowd to unleash barbarism on the Sikhs because “inhone humeri maa ko mara hai” (they have killed our mother) He also asked the mob to not spare the Hindus who had given shelter to Sikhs. In such view of the matter, the Court held that Sajjan Kumar’s acquittal by the trial court was not justified.

Judgment

The High Court reversed the acquittal of Sajjan Kumar and convicted him for the offences of criminal conspiracy punishable under Section 120-B read with Sections 302, 436, 295 and 152A (1)(a) and (b) and 109 IPC. Further while affirming the conviction and sentences awarded by the trial court to the other five accused, the Court additionally convicted and sentenced them for the offence of criminal conspiracy. Sajjan Kumar is sentenced to imprisonment for the remainder of is life and is directed to surrender on or before 31-12-2018. [State v. Sajjan Kumar,2018 SCC OnLine Del 12930, dated 17-12-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: This appeal was filed before a 2-Judge Bench comprising of Sujoy Paul and Nandita Dubey, JJ., against the order passed by trial court convicting appellant for the commission of offences under Sections 302 and 201 of Penal Code and sentencing her to life imprisonment.

Facts of the case were such that the deceased was the husband of appellant whose dead body was found inside a trunk in their house. After which trial took place where appellant was convicted and sentenced for the murder of her husband. Trial Court mainly relied on the testimony of deceased daughter and medical evidence on record which showed throttling as the reason for deceased death. The contention raised by Chetan Jaggi, Advocate appearing as amicus curiae for appellant was that there were no eye-witness and the sentence was passed on the basis of circumstantial evidence where the incident was not pre-planned.

High Court after going through the testimony of daughter of deceased, postmortem report viewed that deceased died due to throttling. Court found no explanation by the appellant as to how the dead body got into the trunk in a room only in access of appellant and deceased and once the prosecution has been able to show that at the relevant time, the room was in exclusive possession of the deceased and appellant, the burden of proof lies on the appellant under what circumstances the death of her husband occurred. Appellant failed to discharge this onus to prove. Therefore, the appeal was dismissed and it was found that the trial court had rightly convicted the appellant under Sections 302 and 201 of Penal Code. [Sudama Bai v. State of M.P., 2018 SCC OnLine MP 904, decided on 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].

Case BriefsSupreme Court

Supreme Court:  The Bench comprising of A.K. Sikri and Ashok Bhushan JJ., addressed an appeal of a convict punished under Sections 302, 498-A and 506 IPC and modified the punishment granted to the convict by the High Court.

In the instant case, the appellant was punished for the offence of killing his wife and thereafter tried to kill himself. For the said convict the trial court awarded death sentence, which was further converted into life imprisonment for the reason that the circumstances were not to be put into the category of ‘rarest of the rare’ case. The High Court on awarding the same also stated that the minimum period of the sentence would be of 30 years without remission.

Therefore, a notice was issued that whether the High Court was justified in putting a cap of 30 years of life imprisonment or not?

While keeping the facts and circumstances of the case into consideration, the Supreme Court decided that the High Court should not have stated that the life sentence for a minimum period of 30 years must be served without remission.  The appeal was disposed of by deleting the portion of the impugned order by making it a case of life imprisonment simpliciter. [Nitin Balkishan Gaikwad v. State of Maharashtra, 2018 SCC OnLine SC 690, dated 09-07-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and P.S. Teji, JJ. dismissed a criminal appeal filed under Section 374 CrPC against the order passed by the trial court whereby the appellant was convicted for an offence punishable under Section 302.

The appellant was convicted for the murder of a lady by stabbing her with a knife and was sentenced to undergo life imprisonment by the trial court. The appellant challenged the said order in the appeal to the High Court submitting that he was having an illicit relationship with the deceased. On the day of the incident, the husband of the appellant caught both of them red-handed and had a fight with the appellant which resulted in the death of the deceased. In the alternative, learned counsel for the appellant suggested that even if the accused was held guilty, his case would fall under Section 304 Part II and not under Section 302 IPC.

The High Court perused the record and held that the impugned order required no interference. The Court observed that to bring a case under Exception 4 to Section 302, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel, without the offender having taken undue advantage and not having acted in a cruel or unusual manner. However in the present case, based on examination of the weapon used, the severity of blows, etc., the Court held that the benefit of the said exception was not available to the appellant. Further, the incident took place in the room of the deceased, this showed that the appellant carried the knife, which was not a normal kitchen knife, to the room of the deceased to fatally injure her. In the circumstances, the Court held that no interference was necessary with the order of the trial court. The appeal was, therefore, dismissed.  [Ajay v. State,2018 SCC OnLine Del 9633, dated 05-07-2018]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench comprising of Suman Shyam and A.M. Buzor Baruah, JJ., altered the conviction and sentence of the appellant from that under Section 302 to Section 304 Part II of Penal Code, 1860.

The appellant was convicted for the homicidal death of his father-in-law. It was alleged that the appellant hacked the deceased to death with an axe. On receiving information, an FIR was registered under Section 302 against the petitioner. The appellant was tried and convicted by the trial court and sentenced to life imprisonment. The appellant filed the instant appeal against the said order. It is worth mentioning that conviction of the appellant was based on testimonies of eye-witnesses as well as the wife of the deceased (mother-in-law of the petitioner).

The High Court considered the record as well as submissions made by the parties. The Court noted that the testimonies of the prosecution witnesses indeed proved that the death of the deceased was homicidal. The Court perused the testimonies of the witnesses and was of the opinion that the wife (CW 1) of the deceased was a material witness. Her testimony, according to the Court, was most important. It was noted that in her testimony, CW 1 had stated that there was a dispute between the appellant and the deceased over a sum of Rs. 1000. Also, there was an ongoing fight between both of them that started the previous day. The Court also noted that the eye-witnesses also stated that at the time of the incident, there was a fight between the appellant and the deceased who was also holding a bamboo stick. Further, although the appellant was equipped with an axe, he did not use the sharp edge of it while assaulting the deceased. In such circumstances, the High Court was of the opinion that it was a case where the act was committed in a fit of anger; the existence of a grave and sudden provocation could not be ruled out. Accordingly, the Court while upholding the finding of guilt against the accused, modified his conviction as stated above. Also, the sentence was modified from that of life to seven years imprisonment. [Joyram Kerkata v. State of Assam,2018 SCC OnLine Gau 643, dated 25-6-2018]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Division: In a judgment delivered by Brooks, J. of the High Court of South Africa, while dismissing the appeal, held against a rape convict that the prescribed sentence of life imprisonment is not disproportionate to the crime, the criminal and needs of the society.

The complainant was a 16 year old boy who was raped by the appellant more than once. For the said crime, appellant was charged with rape in contravention of Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Appellant continued doing so without the complainant’s consent and will. Appellant was therefore, convicted and sentenced to life imprisonment, for which appellant preferred this appeal.

Court on analysing the evidence placed before it, convicted the appellant. Court noted the report of a social worker in which it was stated that the child after that incident had been suffering from flashbacks and nightmares along with lack of concentration in school which all has lead to an adverse impact on the mental health of the child along with physical health. Therefore, it was held that unless weighty justification exists prescribed sentence must not be departed for flimsy reasons.

Therefore, the Hon’ble High Court, by recording the significant point of appellant showing no remorse and the fact that the complainant suffered significant injuries causing pain and trauma, established that the trial Judge was correct in concluding that “there is nothing in the personal circumstances of the appellant that qualifies as a substantial and compelling circumstance.” The appeal was thereby dismissed upholding the sentence imposed by the trial judge. [Sikhumbuzo Xhaka v. State; Case No. CA144/2017; decided on 08.05.2018]

[Picture credit: Facebook/Deon Furstenburg]

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: In the matter where the appellant was found guilty of committing the murder of a minor girl, aged about seven years and also of kidnapping and subjecting her to sexual abuse on her and for destruction of evidence relating to the crime, the 3-Judge Bench of J. Chelameswar, Shiva Kirti Singh and Abhay Manohar Sapre, JJ held that the appellant should be inflicted with imprisonment for life with a further direction that he shall not be released from prison till he completes actual period of 25 years of imprisonment.

The Court referred to the decision of this Court in Swamy Shraddananda(2) v. State of Karnataka(2008) 13 SCC 767, where it was held that life imprisonment means the whole life span of the person convicted and therefore in the facts of a case while not confirming death penalty, this Court may, while exercising its power to impose the punishment of life imprisonment, specify the period up to which the sentence of life must remain intact so as to be proportionate to the nature of the crime committed. The Court was of the opinion that the innovative approach reflected in the aforesaid judgment, on the one hand helps the convict in getting rid of death penalty in appropriate cases, on the other it takes care of genuine concerns of the victim including the society by ensuring that life imprisonment shall actually mean imprisonment for whole of the natural life or to a lesser extent as indicated by the court in the light of facts of a particular case.

Considering the fact that the deceased, a helpless child fell victim to a crime of lust at the hands of the appellant who was 27-years old at the time of commission of offence, the Court said that there may be probabilities of such crime being repeated in case the appellant is allowed to come out of the prison on completing usual period of imprisonment for life which is taken to be 14 years for certain purposes and hence, ordered that the appellant should undergo life imprisonment for the whole of his natural life i.e. 25 years of imprisonment. [Tattu Lodhi v. State of Madhya Pradesh, 2016 SCC OnLine SC 947, decided on 16.09.2016]