Case BriefsSupreme Court

Supreme Court: In a ghastly case involving rape and murder of 2 children, the 3-judge bench of RF Nariman, Surya Kant and Sanjiv Khanna, JJ upheld the conviction of the accused but gave 2:1 verdict on quantum of punishment.

FACTUAL BACKGROUND

  • In October 2010, accused Mohanakrishnan & Manoharan kidnapped a 10-year-old girl & her 7-year-old brother while they were preparing to leave for school.
  • The children were taken to a remote area and rape was committed on the girl.
  • Attempt was made to kill both the children by feeding them poisonous cow dung powder mixed in milk. However, the children took only a small amount of the milk and didn’t die.
  • The children were then thrown away alive in the Parambikulam-Axhiyar Project canal.
  • Both the accused were arrested but Mohanakrishnan was later shot dead in an encounter.

QUANTUM OF PUNISHMENT

MAJORITY VIEW BY NARIMAN AND SURYA KANT, JJ

Considering the serious nature of the crime, Justice Nariman, writing for himself and Surya Kant, J said that there is no doubt that aggravated penetrative sexual assault was committed on the 10 year old girl by more than one person. The 10 year old girl child (who was below 12 years of age) would fall within Section 5 (m) of the POCSO 48 Act. He further said,

“There can be no doubt that today’s judgment is in keeping with the legislature’s realisation that such crimes are on the rise and must be dealt with severely.”

It was noticed that the crime in the case at hand was extremely shocking as a young 10 year old girl has first been horribly gangraped after which she and her brother aged 7 years were done away with while they were conscious by throwing them into a canal which caused their death by drowning. The Court also noticed that no remorse has been shown by the Appellant at all and given the nature of the crime it is unlikely that the Appellant, if set free, would not be capable of committing such a crime yet again.

The Court, hence, confirmed the death sentence imposed on the appellant.

MINORITY VIEW BY KHANNA, J

While Khanna, J said that he would uphold the appellant’s conviction, he did not think that this case was fit for a death penalty and would, hence, commute it to imprisonment for life i.e. till his natural life with a stipulation that the appellant would not be entitled to remission under Sections 432 and 433 of the Code of Criminal Procedure, 1973.

Noticing that the appellant had confessed to his crime and that confession is a ground to mitigate the sentence, Khanna, J said,

“to confess to such acts of crime and misdeeds before all and everyone, including the Magistrate could only mean that the appellant had felt shame, remorse and alienation from the society.”

He also noticed that the appellant had retracted the last part of his confession as to his involvement in sexual assault, rape and throwing the children in the canal and said that the retraction does, however, substantially reiterate and accept the first portion of the confession, including his presence in the van, but states that the appellant had not raped the girl and had remained standing.

He said,

“The retraction by itself, I would observe, should not be treated as absence of remorse or repentance, albeit an afterthought or on advice propelled by fear that the appellant in view of his admission may face the gallows, and that the earlier confession made seeking forgiveness would be the cause of his death.”

Khanna, J also took note of the fact that the appellant was 23 years of age at the time of occurrence and he belongs to a poor family. The facts that he has aged parents and is a first-time offender were also taken into consideration.

He, hence, held,

“the present case does not fall under the category of ‘rarest of rare’ case i.e. there is no alternative but to impose death sentence. It would fall within the special category of cases, where the appellant should be directed to suffer sentence for life i.e. till his natural death, without remission/commutation under Sections 432 and 433 Cr.P.C.”

[Manoharan v. State, 2019 SCC OnLine SC 951, decided on 01.08.2019]

Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

Bombay High Court: The sentence of the appellant who was convicted for kidnapping and rape, was reduced to the period already undergone by him, by a Single Judge Bench comprising of K.K. Sonawane, J.

The appellant was accused of forcibly taking away the prosecutrix (victim), who was a minor at the time of incident. She was taken away on the pretext of marriage and the appellant had sexual intercourse with her a number of times during that period. The appellant was charged under Section 361 read with Section 363, Sections 366 and 376 IPC. He was convicted by the trial court for the offences charged under. The appellant challenged the order of the trial court.

On considering the record, the High Court found that at the relevant time, the victim was 14 years of age. It was proved by the School Leaving Certificate signed by the Headmaster of the School. The evidence led by the prosecution and the statement of witnesses proved that the appellant kidnapped the victim and therefore committed the offence under Section 361 read with 363 IPC. Further, the fact of the appellant having sexual intercourse with the victim was proved by the medical report. And since the victim was below 16 years of age, therefore, her consent doesn’t count and the appellant was guilty of offences under Sections 366 and 376. However, the facts remained that the victim never raised alarm as to her kidnapping, never informed or tried to contact her family, lived with the appellant as husband and wife, and also that the appellant was a youngster, 24 years old, at the time of commission of the offence. The High Court finally upheld the conviction of the appellant; however, his sentence was reduced to the period already undergone by him in light of the mitigating circumstances as noted hereinabove. Thus, the appeal was partly allowed. [Bapu v. State of Maharashtra, 2018 SCC OnLine Bom 920, dated 03-05-2018]

Case BriefsSupreme Court

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

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

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

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, R. Banumathi and Ashok Bhushan, JJ, while considering the affidavits filed to show the mitigating circumstances by the 4 accused persons in the appeal against the capital punishment in the Nirbhaya Case, noticed that the affidavit filed by the accused Mukesh does not cover many aspects, namely, socio-economic background, criminal antecedents, family particulars, personal habits, education, vocational skills, physical health and his conduct in the prison. It was argued by M.L. Sharma, appearing for Mukesh that the same has not been submitted by the Superintendent of Jail.

The Court, hence, stating that the Superintendent of Jail should have filed the report with regard to the conduct of the accused persons since they are in custody for almost four years as that would have thrown light on their conduct, directed that the report be filed by the Superintendent of Jail in a sealed cover in the Court on the next date of hearing i.e. 20.03.2017.

On 03.02.2017, the Court had agreed to hear the appeal against the capital punishment imposed on the accused persons in the Nirbhaya case and had noticed that there are two modes of dealing the matter at hand, one is to remand the matter and the other is to direct the accused persons to produce necessary data and advance the contention on the question of sentence. However, considering the nature of the case, the bench decided to go with the second mode. [Mukesh v. State for NCT of Delhi, 2017 SCC OnLine SC 213, order dated 06.03.2017]

 

Case BriefsHigh Courts

Delhi High Court: The Court  recently in a Criminal Appeal considered the mitigating circumstances to award an appropriate sentence to the accused-appellant. The facts of the case were that the accused was charged under Section 307 IPC. In Section 313 CrPC statement, the appellant denied his involvement in the crime and pleaded false implication. However, he was convicted by the trial court.

Before the High Court, APP pleaded that the appreciation of evidence and witness by the trial court was not appropriate and crime weapon allegedly recovered was not identified by the victim in his court deposition. The appellant in his testimony had named the appellant as accused. But the Crime weapon allegedly recovered in this case was not identified by the victim in his Court deposition.

The Court denied discrediting the statement of the victim merely because he had not identified the weapon. The Court went on to discuss the gravity of evidence that an injured victim’s statement possesses and accordingly cited various case laws. It observed that in State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324, Supreme Court had averred that the testimony of an injured witness is accorded a special status in law as it is difficult to believe that he would spare the actual offender in order to falsely implicate someone else.

Considering the precedents, the Court decided to rely on the victim’s statement and upheld the conviction. However, with regard to the sentence, the Court took into account the mitigating circumstances such as that the appellant had a younger brother and old aged parents to take care of them, that he was a first time offender and was aged 25 years of age at the time of commission of offence. Accordingly, the Judge modified the sentence of 7 years RI along with a fine of Rs. 50,000 as compensation to victim to the extent that RI shall be for five years with fine Rs. 50,000 and default sentence for non-payment of fine would be SI for two months. [Jitender Khari v. State, 2017 SCC OnLine Del 6953, decided on 09.02.2017]

Case BriefsSupreme Court

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

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

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

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

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