Hot Off The PressNews

Supreme Court: In a last ditch effort to escape the noose, Vinay Kumar Sharma, one of the four men sentenced to death in the Nirbhaya gang rape and murder case, has filed a curative petition in the Supreme Court on Thursday after a Delhi Court issued death warrants against all 4 convicts and directed that they be hanged on January 22 at 7 am in Tihar jail.

In his curative plea, which is the last legal remedy available to a convict, Vinay said his young age has been erroneously rejected as a mitigating circumstance.

“The petitioner’s socio-economic circumstances, number of family dependants including ailing parents, good conduct in jail and probability of reformation have not been adequately considered leading to gross miscarriage of justice,”

It said the court’s judgment has relied on factors such as “collective conscience of society” and “public opinion” in deciding the sentence to be imposed on him and others.

“The impugned judgment is bad in law as subsequent judgments of apex court have definitely changed the law on death sentence in India allowing several convicts similarly placed as him to have their death sentence commuted to life imprisonment,”

It further said that after pronouncement of the Nirbhaya judgment in 2017 there have been as many as 17 cases involving rape and murder in which various three-judge benches of the Supreme Court have commuted the death sentence.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore.

One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term.

(Source: PTI)

Case BriefsSupreme Court

Supreme Court: After a brief hearing on the review petition filed by Akshay Kumar Singh, one of the convicts in the brutal December 16, 2012, Nirbhaya gang-rape and murder case, seeking modification and leniency, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ has rejected the review petition and said,

“We do not find any error apparent on the face of the record in the appreciation of evidence or the findings of the judgment dated 05.05.2017. None of the grounds raised in the review petition call for review of the judgment dated 05.05.2017.”

The bench headed by Banumathi, J held that the contentions assailing the case of the prosecution were all raised earlier and upon consideration of evidence, the same were rejected by this Court. Stating that review petition is not for re-hearing of the appeal on re-appreciation of the evidence over and over again, the Court said that a party is not entitled to seek review of the judgment merely for the purpose of rehearing of the appeal and a fresh decision.

The grounds raised in the review petition were:

  • futility of awarding death sentence in Kalyug, where a person is no better than a dead body; and
  • that the level of pollution in Delhi NCR is so great that life is short anyhow and everyone is aware of what is happening in Delhi NCR in this regard and while so, there is no reason why death penalty should be awarded.

The Court said that it was unfortunate that such grounds were raised in the matter as serious as the present case.

During the hearing, the convict’s advocate, Dr. AP Singh had argued that death penalty is a primitive method of punishment and that execution kills the criminals and not the crime. He also said that use of death penalty doesn’t seem to have a deterrent effect to criminals and convicts. He also argued that only the poor and downtrodden are more likely to be sentenced with death sentence. The Court, however, said that

“Such general contentions put forth against the capital punishment cannot be gone into in this review petition.”

On the submission that because of the media pressure, the petitioner and other accused have been falsely implicated, the Court held,

“In a criminal case, culpability or otherwise of the accused are based upon appreciation of evidence adduced by the prosecution and also the evidence adduced by the defence. The materials or the news emerging in the media and press as also the news channels cannot be taken note of in arriving at a conclusion on the culpability of the accused or to test credibility of the witness. Such events cannot be urged as a ground for review.”

On the question of award of death sentence, Solicitor General Tushar Mehta told the Court that there are certain crimes where “humanity cries” and Nirbhaya case was one of them. He added,

“Convict doesn’t deserve any leniency, God would feel ashamed on creating such monster.”

The Court noticed that the mitigating circumstances elaborated upon by the defence by way of highlighting the comparatively young age of the convicts, their socio-economic background, their unblemished antecedents and their chances of reformation, fade into insignificance. It, hence, held,

“In light of the aggravating circumstances and considering that the case falls within the category of “rarest of rare cases”, the death penalty is confirmed.”

After the Court held that it found no grounds for review of 2017 verdict upholding death penalty of convict, the convict’s advocate, Dr. AP Singh sought 3-weeks’ time to file mercy petition before President. Solicitor General Tushar Mehta, however, countered the submission by saying that one week’s time is prescribed under law for filing mercy petition before President. The bench headed by Banumathi, J, however, refrained from expressing view on time frame to file mercy petition and said,

“whatever time is prescribed under law, convict can avail remedy of filing mercy plea within it.”

The Court had on May 5, 2017, upheld the death sentence of all the four convicts in the brutal December 16 gangrape and murder case. The Court, while dismissing the appeal of the four convicts, had said that the crime fell in the rarest of rare category and “shaken the conscience of the society.” Writing down a 429 page long judgment, the 3-judge bench of Dipak Misra, R. Banumathi and Ashok Bhushan, JJ  had 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.

The Court had also rejected the review petition of the other 3 convicts on July 9, 2018.

[Akshay Kumar Singh v. State (NCT of Delhi), 2019 SCC OnLine SC 1653, decided on 18.12.2019]

Hot Off The PressNews

Supreme Court: Akshay Kumar Singh, one of the convicts in the brutal December 16, 2012, Nirbhaya gang-rape and murder case, has filed a review petition seeking modification and leniency.
Singh was sentenced to death by a trial court on September 13, 2013, for raping and murdering the 23-year-old woman physiotherapist on the chilling cold night of December 16, 2012, in the national capital. His sentence was upheld by the Delhi High Court and finally by the Supreme Court.

The convict — Akshay — in his review petition pleaded and requested the Supreme Court to consider his prayer and review its earlier judgement of May 5, 2017, in which the Court sentenced him to the gallows. Akshay’s lawyer, Dr. AP Singh said,

“We are requesting the apex court to conduct the review petition hearing in an open court,”

The Court had on May 5, 2017, upheld the death sentence of all the four convicts in the brutal December 16 gangrape and murder case. The Court, while dismissing the appeal of the four convicts, had said that the crime fell in the rarest of rare category and “shaken the conscience of the society.” Writing down a 429 page long judgment, the 3-judge bench of Dipak Misra, R. Banumathi and Ashok Bhushan, JJ  had 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.

The Court had also rejected the review petition on July 9, 2018.

(With inputs from ANI)

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 has refused to review their verdict in Manoharan v. State, (2019) 7 SCC 716, upholding  the conviction of the accused. In the said judgment, the bench had unanimously upheld the conviction, but gave 2:1 verdict on quantum of punishment.

While Nariman and Surya Kant, JJ awarded death penalty, Khanna, J did not think that this case was fit for a death penalty and hence, commuted it to imprisonment for life i.e. till convict’s natural life with a stipulation that he would not be entitled to remission under Sections 432 and 433 of the Code of Criminal Procedure, 1973.

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.

MITIGATING FACTORS CONSIDERED BY THE COURT IN THE REVIEW PETITION

Lack of adequate opportunity to place on record material/evidence of mitigating circumstances

After re-visiting the mitigating circumstances against aggravating circumstances, as well as a report commissioned by this Court during the course of appeal and submitted by the jail superintendent, the Court held that the conduct of the Petitioner is merely satisfactory and he has not undertaken any study or anything else to show any signs of reformation.

Backward socioeconomic circumstances

There is nothing to support the arguments that the accused is a helpless, illiterate young adult who is a victim of his socioeconomic circumstances. Far from being so, it is clear through the version of events that the accused had the presence of mind to craft his own defence and attempt to retract his confession through an elaborately written eleven page letter addressed to the Magistrate and had further received adequate legal representation.

Remorse

Accused’s advocate argued that the retraction letter shows that he stopped the co-accused from committing rape and this is evident of the fact that he has remorse which entitles him to commutation, if not acquittal. The Court, however, held that the retraction was extremely belated and only a defence to shield himself. Further, medical evidence has proved that rape was committed on the deceased girl. It is hence factually incorrect to state that the Petitioner prevented the co-accused from raping the girl and is nothing more than a belated lie at the end of the trial.

Young age and aged parents

Mere young age and presence of aged parents cannot be grounds for commutation. Such young age poses a continuous burden on the State and presents a longer risk to society, hence warranting more serious intervention by Courts.

Criminal Record

The Court refused to give leeway of the lack of criminal record, considering that the current crime was not just one offence, but comprised of multiple offences over the series of many hours.

The bench held that the present case is essentially one where two accused misused societal trust to hold as captive two innocent school-going children, one of whom was brutally raped and sodomised, and thereupon administered poison and finally, drowned by throwing them into a canal. It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist.

Nariman and Surya Kant, JJ, hence, held

“We are of the view that the present offence(s) of the Petitioner are so grave as to shock the conscience of this Court and of society and would without doubt amount to rarest of the rare.”

While Khanna, J agreed with his learned brothers on the dismissal of review petition and upholding of the conviction of the accused, on the question of sentence, he held,

“I do not see any good ground and reasons to review my observations and findings in the minority judgment.”

[Manoharan v. State, 2019 SCC OnLine SC 1433, decided on 07.11.2019]

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]