Case BriefsSupreme Court

Supreme Court: In a landmark ruling, the Division Bench of Dinesh Maheshwari* and Aniruddha Bose, JJ., reversed Delhi High Court’s judgment holding that the Presidential order banning benefit of parole and remission to the appellant will also disentitle him of benefit of furlough.

By a detailed judgment the Bench clarified differences between remission, parole and furlough. Opening that the High Court had misunderstood furlough for remission, the Bench expressed,

“We need not elaborate to say that depriving of even the concession of furlough and thereby taking away an incentive/motivation for good conduct would not only be counter-productive but would be an antithesis to the reformative approach otherwise running through the scheme of Rules of 2018.”

Factual Background

The appellant – a life convict whose death sentence was commuted by the President of India vide order dated 15-11-2012 – had preferred the instant appeal on being aggrieved by the Delhi High Court’s order, dismissing his writ petition and declining his prayer to grant furlough. The High Court had held that the appellant was not entitled to furlough owing to the conditions of the order issued by the President of India in mercy petition that the appellant’s death sentence be converted to the one of imprisonment for life with additional direction that he would remain in prison ‘for the whole of the remainder of his natural life without parole and there shall be no remission of the term of imprisonment’.

The High Court opined that that the appellant was not entitled to seek furlough because he was not entitled to remission of any kind. However, the contention of the appellant was that the aforesaid terms of the order dated 15-11-2012 were of no debarment, so far as his entitlement to furlough under the Delhi Prison Rules, 20181 was concerned.

Decision of Death Sentence

The appellant was sentenced to death for the offence under Section 302 of the Penal Code, 1860 on accusation that he caused the death of his step-mother, step-brother and step-sister by multiple knife-blows. Finding it to be a case falling in ‘rarest of the rare category’, the High Court as well as the Supreme Court had confirmed the sentence of death awarded to him.

Mercy Petition

When the curative petition filed by the appellant was dismissed, the appellant approached the President in a mercy petition to grant pardon and to suspend, remit or commute his sentence. By the order dated 15-11-2012, the President modified the sentence of death awarded to the one of imprisonment for life with the requirements that he would remain in prison for the whole of remainder of his natural life without parole and there shall be no remission of the term of imprisonment.

Law on Furlough

Furlough is defined in Section 2(h) of the Delhi Prison Act, 2000 as: –

“Furlough means leave as a reward granted to a convicted prisoner who has been sentenced to RI for 5 years or more and has undergone 3 years thereof”

The objectives of parole and furlough are set forth in Rules 1197 to 1200 of the Delhi Prison Rules, 2018; Rule 1199 states that furlough means release of a prisoner for a short period of time after a gap of certain qualified numbers of years of incarceration by way of motivation for maintaining good conduct and to remain disciplined in the prison. This is purely an incentive for good conduct in the prison. Therefore, the period spent by the prisoner outside the prison on furlough shall be counted towards his sentence.

Rule 1223 states following requirements to be eligible for furlough:

  1. Good conduct in the prison and should have earned rewards in last 3 Annual good conduct report and continues to maintain good conduct.
  2. The prisoner should not be a habitual offender.
  3. The prisoner should be a citizen of India.

The ideology behind granting furlough is that convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens.

High Court Misunderstood Furlough for Remission

Rejecting the reasoning of the High Court that once it had been provided by the President that the appellant would remain in prison for whole of the reminder of his natural life without parole and without remission, all his other rights, particularly those emanating from good jail conduct, as available in the Rules, 2018 would stand foreclosed, the Bench stated that in the Rules, 2018, the eligibility requirement to obtain furlough is of ‘3 Annual good conduct reports’ and not ‘3 Annual good conduct remissions’.

The Bench opined that in the scheme of the Rules, 2018 it cannot be said that earning rewards is equivalent to earning remissions and even if he (the appellant) would spend some time on furlough, that will not come to his aid so as to seek remission because of the fact that he has to remain in prison for whole of the reminder of his natural life.

Difference between Parole, Remission and Furlough

Further, the Bench noted that the presidential order dated 15-11-2012 bars parole as also remission but significantly, there is no mention of the treatment of entitlement towards furlough. While differentiating between remission, parole and furlough, the Bench observed that parole is akin to temporary suspension of execution of sentence. There cannot be any temporary suspension of execution of sentence qua the appellant inasmuch as the sentence awarded to him has to run in perpetuity and during the whole of his natural life. Moreover, for parole, conduct is not a decisive factor.

However, in contradistinction to parole, in furlough, the prisoner is deemed to be serving the sentence inasmuch as the period of furlough is not reduced from actual serving period. And, the conduct is predominantly decisive of entitlement towards furlough. Thus, even if the appellant would be on furlough, he would be deemed to be serving the sentence for all time to come. The Bench opined that,

“…the High Court proceeded on the assumption that the matter was being considered for grant of remission and ‘consequently’ for grant of furlough under the Delhi Prison Rules, 2018. The Court was of the view that since the convict in question would not get remission, he would not be entitled to furlough. The Court assumed that remission was a prerequisite for furlough.”

Hence, the Bench held that the entitlement of furlough cannot be decided in the case of the present nature with reference to the question as to whether any remission would be available or not.

Noticing that the whole of the scheme of granting furlough is based on reformation and is an incentive for maintaining good conduct, the Bench held that even if the appellant is to remain in prison for the whole of remainder of his life, the expectations from him of good conduct in jail would always remain; and the lawful consequences of good conduct, including that of furlough, cannot be denied.

Verdict

In the above backdrop, the Bench concluded that since the appellant had 3 Annual good conduct reports in his favour, he could not be denied furlough with reference to the order dated 15-11-2012, as the said order could not be construed to take away the rights flowing from his maintaining good conduct; neither the requirements of his maintaining good conduct are whittled down nor the reformative approach and incentive for good conduct cease to exist in his relation.

Therefore, the Bench disapproved blanket denial of furlough to the appellant in the orders impugned, and directed the authorities concerned to decide the case of the appellant for grant of furlough in accordance with law. The impugned judgment and orders were set aside; and the case of the appellant for grant of furlough was restored for reconsideration of the Director General of Prisons, to be decided preferably within two months.

[Atbir v. State (NCT of Delhi), 2022 SCC OnLine SC 527, decided on 29-04-2022]


*Judgment by: Dinesh Maheshwari


Appearance by:

For the Appellant: Advocate Neha Kapoor

For the State: Additional Solicitor General S. V. Raju


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: The 3-Bench comprising of Uday Umesh Lalit, S. Ravindra Bhat and P.S. Narasimha, JJ., issued notice to Madhya Pradesh government on being appraised that there is a policy of incentivising public prosecutors for obtaining capital punishments in matters prosecuted by them.

Noticeably, a petition was filed before the Court alleging that the State is granting incentives to public prosecutors on the basis of death sentence awarded in matters prosecuted by them. Assessing the gravity of allegation the Court on 29-03-2022 had issued direction to the Registry to register a Suo Motu case and change the cause title immediately.

Siddhartha Dave, Senior Advocate and K. Parameshwar, Advocate was appointed as Amicus Curiae to assist the Court in the Matter. Additionally, the Court had also heard K.K. Venugopal, Attorney General for India, Siddharth Agarwal, Advocate, representing Project-39A, Gaurav Agrawal, Advocate for NALSA and Rukhmini Bobde, Advocate representing State of Madhya Pradesh.

Accepting the Attorney General’s proposal to place on record relevant material pertaining to other jurisdictions to assist the Court in deciding the matter, the Bench has granted liberty to all the counsels engaged in the instant matter to place on record any material that would render assistance to the Court.

Considering that the matter required consideration at an early date, the Bench issued additional directions to the counsels that the needful be done within 10 days.

The State was directed to place on record the concerned Policy along with submissions in support of said Policy. The matter is listed on 10-05-2022 for further hearing.

[Irfan v. State of M. P., Writ Petition (Cri) No. 142 of 2022, order dated 22-04-2022]


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In a case where a man had brutally raped and murdered a 7-year-old girl, the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and CT Ravikumar, JJ has reversed the concurrent findings of the Courts below and has commuted the death sentence into that of imprisonment for life, with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 years.

The Court observed,

“The heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience. But, at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family comprising of wife, children and aged father, and has unblemished jail conduct.”

The Trial Court and the High Court had sentenced the appellant to death for enticing a seven-year-old girl to accompany him on the pretext of picking lychee fruits; having thereafter committed rape upon the child; having caused her death; and having dumped the dead body near a bridge on the riverbank, after having dragged the dead body over a distance of one and one-quarter kilometres.

The Supreme Court, however, noticed that both the Trial Court as also the High Court have taken the abhorrent nature of crime alone to be the decisive factor for awarding death sentence in the present case.

The Trial Court convicted the appellant on 07.12.2016 and on the next day, proceeded to award the sentence. The sentencing order did not indicate if the appellant was extended reasonable opportunity to make out a case of mitigating circumstances by bringing relevant material on record. The sentencing order also failed to satisfy if the Trial Court consciously pondered over the mitigating factors before finding it to be a ‘rarest of rare’ case.

The Trial Court also observed that ‘if such heinous crime is committed by him, it is not justifiable to show any sort of mercy in the punishment.’

The High Court confirmed the order of the Trial Court, with a cursory observation that there were no substantial mitigating factors and the aggravating circumstances were aplenty, after making rather intense comments on the menace of rape and brutal murder of children as also on the society’s abhorrence of such crime.

In such circumstances, the Court observed that the approach of the Trial Court and High Court had been that the accused-appellant was about 33-34 years of age at the time of occurrence and was supposed to be sensible. The Supreme Court, hence, held that the impugned orders awarding and confirming death sentence could only be said to be of assumptive conclusions, where it has been assumed that death sentence has to be awarded because of the ghastly crime and its abhorrent nature.

Disagreeing with the concurrent findings of the Courts below, the Supreme Court held that,

“There is nothing on record to rule out the probability of reformation and rehabilitation of the appellant, in our view, it would be unsafe to treat this case as falling in ‘rarest of rare’ category.”

It observed that when the appellant is not shown to be a person having criminal antecedents and is appellant is not shown to be a person having criminal antecedents and is not a hardened criminal, it cannot be said that there is no probability of him being reformed and rehabilitated. His unblemished jail conduct and having a family of wife, children and aged father would also indicate towards the probability of his reformation.

It was, however, observed that even when the present case is taken to be not falling in the category of ‘rarest of rare’ so as to require termination of the life of the appellant yet, the impact of the offences in question on the conscience of the society as a whole cannot be ignored. Hence, commutation of death sentence to life imprisonment without application of the provisions of premature release/remission before mandatory actual imprisonment, was found to be just and reasonable.

The Court, hence, awarded the punishment of imprisonment for life to the appellant for the offence under Section 302 IPC while providing for actual imprisonment for a minimum period of 30 years. All the substantive sentences to run concurrently.

[Pappu v. State of Uttar Pradesh, 2022 SCC OnLine SC 176, decided on 09.02.22]

*Judgment by: Justice Dinesh Maheshwari

Legal RoundUpSupreme Court Roundups

“Merit is not solely of one‘s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement.”

Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 75


STORY OF THE MONTH


“Reservation is not at odds with merit”; Here’s why SC upheld OBC reservation in NEET PG and UG Admissions in AIQ quota

In a detailed judgment, the bench of Dr. DY Chandrachud and AS Bopanna, JJ has upheld the Constitutional validity of the reservation for OBC candidates in the AIQ seats for PG and UG  medical and dental courses and noticed that while an open competitive exam may ensure formal equality where everyone has an equal opportunity to participate, however, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system.

Read more…


UNMISSABLE STORIES


COVID-19/Omicron surge yet again forces Supreme Court to extend period of limitation for filing of cases

After the Supreme Court Advocates-on-Record Association approached the Court in light of the spread of Omicron, the new variant of the COVID-19 and the drastic surge in the number of COVID cases across the country, the 3-judge bench of NV Ramana, CJ and L. Nageswara Rao and Surya Kant, JJ restored the order dated 23.03.2020 and directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.

Read more

____________________________________________________________________________________________

PM Modi Security Lapse: “War of words no solution”; SC appoints Committee headed by Justice Indu Malhotra to look into the matter

After a massive security lapse that left Prime Minister Narendra Modi stuck on a highway in Punjab for 20 minutes on January 5, 2022, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has formed a committee to be chaired by Justice Indu Malhotra, former Supreme Court Judge.

Read more…

____________________________________________________________________________________________

NEET 2021-22: Supreme Court allows Counselling with 27% Quota for OBCs and 10% Quota for EWS in All India Quota

 Considering the urgent need to commence the process of Counselling, the bench of Dr. DY Chandrachud* and AS Bopanna, JJ, has directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats.

Read more…

____________________________________________________________________________________________

Suspension of 12 Maharashtra BJP MLAs for one year “grossly illegal”; worse than expulsion, disqualification or resignation

In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “indisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.

Read more…

____________________________________________________________________________________________

“Can’t allow Devas and its shareholders to reap the benefits of their fraudulent action”; SC upholds NCLAT’s order to wind up Devas  

“If the seeds of the commercial relationship between Antrix and Devas were a product of fraud perpetrated by Devas, every part of the plant that grew out of those seeds, such as the Agreement, the disputes, arbitral awards etc., are all infected with the poison of fraud.”

Read more…

____________________________________________________________________________________________

Arcelor Mittal Nippon Steel India Limited to pay the purchase tax of Rs. 480 Crores as SC sets aside Gujarat HC verdict

In a major blow to Essar Steel Limited, now Arcelor Mittal Nippon Steel India Limited), the bench of MR Shah* and Sanjiv Khanna, JJ has set aside the Gujarat High Court verdict wherein it was held that Essar was entitled to the exemption from payment of purchase tax as per the Notification dated 05.03.1992, which was issued under Section 49(2) of the Gujarat Sales Tax Act, 1969. As a result Essar will now have to pay the purchase tax of Rs.480.99 crores.

Read more…

____________________________________________________________________________________________

Dowry Death| Woman meting out cruelty to another woman deserves no leniency. Mother-in-law must protect daughter-in-law, not harass her: SC

“Being a lady, the appellant, who was the mother-in-law, ought to have been more sensitive vis-à-vis her daughter-in-law.”

Read more…

____________________________________________________________________________________________

Can Demand of Money for Construction of a House be Treated as a Dowry Demand? SC answers in a 2002 case where a 5-months pregnant woman set herself on fire

“A push in the right direction is required to accomplish the task of eradicating this evil which has become deeply entrenched in our society.”

Read more…

____________________________________________________________________________________________

Pension is not a bounty; Lack of financial resources no excuse for taking away vested rights by way of retrospective amendments

The bench of Ajay Rastogi and Abhay S. Oka, JJ has held that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.

Read more…

____________________________________________________________________________________________

Cal HC had no jurisdiction to quash CAT Principle Bench’s transfer order in Alapan Bandhopadhyay Case, holds SC, based on this Constitution Bench Law holding ground since 1997

The 2-judge bench of AM Khanwilkar and CT Ravikumar, JJ has reiterated the position laid down by the Constitution Bench in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, that any decision of such a Tribunal, including the one passed under Section 25 of the Administrative Tribunals Act, 1985 could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls.

Read more…


EXPLAINERS



MORE STORIES


“Not a case of lack of promotional opportunities”; No financial upgradation to employee refusing regular promotion for personal reasons

The bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she/he has suffered stagnation.

Read more…

____________________________________________________________________________________________

Life cannot be breathed into the stillborn charge memorandum; SC holds where prior approval is the rule the defect cannot be cured by post-facto approval

“What is non-existent in the eye of the law cannot be revived retrospectively.”

Read more…

Cheque gets deposited to the account of account holder with strikingly similar name. Bank blames customer. Read why SC was “surprised” at NCDRC’s ruling

In an interesting case where one SBI account holder was left with a balance of Rs. 59/- only in his account due to the existence of another bank account with strikingly similar name in the same branch, the bench of Sanjiv Khanna and Bela M. Trivedi*, JJ has set aside the “highly erroneous” impugned order passed by the National Consumer Disputes Redressal Commission solely relying upon the suo-moto report called for from SBI during the pendency of the revision application.

Read more…

____________________________________________________________________________________________

Reservation in promotion: The 6 issues settled by Supreme Court on collection of quantifiable data on inadequacy of representation

The 3-judge bench of L. Nageswara Rao*, Sanjiv Khanna and BR Gavai has answered 6 crucial questions in relation to quantifiable data showing inadequacy of representation in promotional posts.

Read more…

____________________________________________________________________________________________

Delinquent employee doesn’t have an absolute right to be represented in departmental proceedings by the agent of his choice

In a case where the Rajasthan High Court had permitted the respondent employee who is facing disciplinary proceedings to represent through ex-employee of the Bank, the bench of MR Shah* and Sanjiv Khanna, JJ has interpreted Regulation 44 of the Rajasthan Marudhara Gramin Bank (Officers and Employees) Service Regulation, 2010 read with clause 8.2 of the Handbook Procedure to hold that the delinquent employee has no absolute right to avail the services by ex-employee of the Bank as his DR in the departmental proceedings.

Read more…

____________________________________________________________________________________________

COVID-19| A Biological Weapon? Most misconceived! SC rules it is for the elected Government to take necessary action if any

While addressing a petition making bizarre claim that virgin Coconut Oil can dissolve Covid-19 virus, the Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ., held that it cannot let every person who believes that he has some solution to the virus, to come up in a petition under Article 32 of the Constitution.

Read more…

____________________________________________________________________________________________

High Court’s Revisional jurisdiction under Section 401 Cr.P.C re power to reverse acquittal. SC answers important questions

“Though the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.”

Read more…

____________________________________________________________________________________________

P&H HC directs State to provide sports quota of 3% in Government Medical/Dental Colleges instead of 1% provided in policy decision. Such mandamus impermissible, holds SC

Explaining the scope of writ jurisdiction, the bench of MR Shah* and BV Nagarathna, JJ has held that the State Government’s action taking a policy decision to prescribe a particular percentage of reservation/quota for a particular category of persons, cannot be interfered with by issuance of a writ of mandamus, directing the State Government to provide for a particular percentage of reservation for a particular category of persons other than what has been provided in the policy decision taken by the State Government.

Read more…

____________________________________________________________________________________________

Person with 54% disability pinned to the ground, throttled by neck and consequently killed by strangulation; SC cancels HC order granting bail to the accused

Finding the order of the High Court cryptic and casual, de hors coherent reasoning, the Bench invoked the latin maxim “cessante ratione legis cessat ipsa lex” to hold that “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”.

Read more…

____________________________________________________________________________________________

Civil Court has no jurisdiction in dispute relating to property governed by the Haryana (Control of Rent & Eviction) Act, 1973: SC

The Court was deciding the dispute relating to suit property situated within the municipal limits of Kaithal which is governed by the Haryana (Control of Rent & Eviction) Act, 1973.

Read more…

____________________________________________________________________________________________

Traffic blockage due to agitation, failure to deliver consignment within validity period of e-way bill; SC imposes cost of Rs. 59000 on Sales Tax Officer for illegally imposing penalty

“When the undeniable facts, including the traffic blockage due to agitation, are taken into consideration, the State alone remains responsible for not providing smooth passage of traffic.”

Read more…

____________________________________________________________________________________________

Whether adoption of parent Government Resolution by an undertaking leads to automatic adoption of subsequent modifying resolutions?

“There are limitations or qualifications to the applicability of the doctrine of ‘equal pay for equal work’.”

Read more…

____________________________________________________________________________________________

State ‘exclusivity’ for disallowance of certain fee, charge, etc. is to be viewed from the nature, not the number of undertakings on which the levy is imposed

The Division Bench of R. Subhash Reddy* and Hrishikesh Roy, JJ., held that to determine State Monopoly for disallowance of certain fee, charge, etc. in the case of State Government Undertakings the aspect of ‘exclusivity’ has to be viewed from the nature of undertaking on which levy is imposed and not on the number of undertakings on which the levy is imposed.

Read more…

____________________________________________________________________________________________

Failure to provide occupancy certificate a deficiency in service under the Consumer Protection Act and also a continuing wrong

The bench of Dr. DY Chandrachud* and AS Bopanna, JJ has held that failure on the part of the builder to provide occupancy certificate is a continuing breach under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 and amounts to a continuing wrong.

Read more…

____________________________________________________________________________________________

Whether charitable education institutions exempted from levy of electricity duty under Maharashtra Electricity Act, 2016? Supreme Court interprets

The Division Bench comprising of M. R. Shah* and Sanjiv Khanna, JJ., reversed the impugned order of the High Court whereby the High Court had held that education institutions run by charitable societies are exempted from payment of electricity duty.

Read more…

____________________________________________________________________________________________

Non-consideration for subsequent preference post after being declared ineligible for first post preference: Is it unjust? Supreme Court answers

While addressing the issue as to whether a candidate is entitled to claim appointment on a subsequent post in his preference list after having being considered for his first preference and being declared not suitable for the said post due to non-fulfilment of physical requirements, the Division Bench of Dr Dhananjaya Y Chandrachud and A.S. Bopanna*, JJ., replied in negative.

Read more…

____________________________________________________________________________________________

“Democratic interests cannot be judicially aborted to preserve unfettered freedom to conduct business, of the few”; Govt. decision to ban MTTs in PPE products ensures adequate PPE in India: SC

“This Court must be circumspect that the rights and freedoms guaranteed under the Constitution do not become a weapon in the arsenal of private businesses to disable regulation enacted in the public interest.”

Read more…

____________________________________________________________________________________________

Order de hors reasoning cannot result in grant of bail! SC holds informant has a right to assail bail orders bereft of reasons before a higher forum

“It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”

Read more…

____________________________________________________________________________________________

Scrap picker beaten to death; incident recorded in CCTV: State failed to protect victim’s rights by not challenging Guj HC’s order releasing accused on bail; SC cancels bail

In a case where a scrap picker was beaten to death and the Gujarat High Court had released one of the accused on bail despite the entire incident been recorded in the CCTV footages and the mobile phone, the bench of MR Shah and BV Nagarathna, JJ has cancelled the bail and has observed that by not filing the appeals by the State against the impugned judgments and orders releasing the accused on bail in such a serious matter, the State has failed to protect the rights of the victim.

Read more…

____________________________________________________________________________________________

Gift deed by an old illiterate woman: SC approves not legalistic but holistic approach by lower courts to determine validity of deed. HC’s verdict set aside

In an issue relating to the alleged gift deed by an old illiterate woman, the bench of MR Shah and Sanjiv Khanna*, JJ has held that when a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document.

Read more…

____________________________________________________________________________________________

No more uncertainty over fixation of percentage of reservation for OBC and SC/ST candidates; SC interprets Section 3 Second Proviso of CEI Act, 2006

The bench of L. Nageswara Rao and Hima Kohli, JJ has held that the formulae for fixing the percentage of reservation for the SC and ST candidates and for determining the percentage of seats to be reserved for OBC candidates under the second proviso of Section 3 of the Central Educational Institutions (Reservation in Admission) Act, 2006, ought to be gathered from the same source and any other interpretation would lead to uncertainty.

Read more…

____________________________________________________________________________________________

3-year old raped and strangulated to death; Read why Supreme Court commuted Death Sentence to life imprisonment

The Fast Track Court, Raigarh had convicted the appellant for the offences punishable under Sections 363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the Penal Code, 1860 and Section 6 of the POCSO Act, 2012 and vide the same judgment and order, the appellant was sentenced to death for the offence punishable under Section 302 of the IPC. Subsequently, vide the impugned judgment and order, the High Court had confirmed the death penalty.

Read more…

____________________________________________________________________________________________

Mere recommendation of the SP at the initial stage not sufficient to claim a right for promotion: SC explains Punjab Police Rules, 1934

In a case where a Constable’s name was recommended by the Superintendent of Police but the same was dropped down by the Inspector General of Police for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 2004, the bench of KM Joseph and PS Narsimha, JJ has held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.

Read more…

____________________________________________________________________________________________

No scaling down of sentence to 10 years as per NDPS Act for man sentenced to 26 years in prison by Mauritius SC for being in possession of over 150 gms of heroin

In a case where a man was arrested in Mauritius after being found to be in possession of 152.8 grams of heroin and was sentenced to 26 years in prison by the Supreme Court of Mauritius, the bench of L. Nageswara Rao and BR Gavai has upheld the Central Government’s decision rejecting the request for scaling down the sentence from 26 years to 10 years and has found it to be in accordance with the provisions of the Repatriation of Prisoners Act, 2003 and the agreement entered into between India and Mauritius.

Read more…

____________________________________________________________________________________________

No Pensionary Benefits To WALMI Employees; Employees Of Autonomous Bodies Can’t Claim Benefits On A Par With Government Employees As Matter Of Right

“… the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees.”

Read more…

____________________________________________________________________________________________

Whether the term “school children” includes university students while interpreting Government Memo exempting buses carrying school children from Passengers Tax? SC clarifies

While holding that the term “school children” will include college and university as well while interpreting government memo exempting passengers tax in respect of Stage Carriage (buses) owned by educational institution and used for the transportation of children to and from such institutions, the Division Bench of Dinesh Maheshwari and Vikram Nath, JJ., remarked,

“It gets perforce reiterated that the broad expression “children”, obviously, refers to the students taking instructions in educational institutions, irrespective of their class or standard or level.”

Read more…


CASES REPORTED IN SCC


2021 SCC Vol. 9 Part 1

Ranging from Arbitration, Service Law to Family Law, this Volume 9 Part 1 brings in some very carefully and expertly analysed Judgments

2021 SCC Vol. 9 Part 2

In this part read a very interesting decision expertly analysed by our editors. Supreme Court ruled that the trustees are required to

SCC Snippets

Are Clients Or Courts Bound By Lawyer’s Statements Or Admissions As To Matters Of Law Or Legal Conclusions?


Case BriefsSupreme Court

Supreme Court: In a case where the order of conviction and sentence was passed on the same day, the 3-judge bench of L. Nageswara Rao, BR Gavai and BV Nagarathna, JJ has stressed on the importance of bifurcated hearing for convicting and sentencing and has observed that the same is necessary to provide an effective opportunity to the accused. Adequate opportunity to produce relevant material on the question of death sentence should be provided to the accused by the Trial Court.

The Court was hearing the case the kidnapping, rape and murder of a girl aged 11 years. On 14.04.2017, the victim, along with her parents and two brothers, went to attend a function. While returning, her parents realized that she was missing and upon searching, at about 5:00 AM on the next day, the mother found her daughter lying near a hand-pump. She was in an unconscious condition. According to the inspection report, the body of the deceased was lying in a supine position and on the back side of the head of the deceased, there were multiple small pieces of dry grass, Caltrop and a dry bark of drumstick tree in the hair. Both eyes were closed. There were injury marks on the body and blood was present in the genitalia. The cause of the death was given as asphyxia, neurogenic shock due to neck pressing, severe injuries and bleeding in vagina and anal opening by committing rape forcefully.

While the Supreme Court was in agreement with the concurrent findings that the Appellant was guilty of committing the offences as charged, it observed that,

“It is travesty of justice as the Appellant was not given a fair opportunity to defend himself. This is a classic case indicating the disturbing tendency of Trial Courts adjudicating criminal cases involving rape and murder in haste. It is trite law that an accused is entitled for a fair trial which is guaranteed under Article 21 of the Constitution of India. In respect of the order of conviction and sentence being passed on the same day, the object and purpose of Section 235 (2) CrPC is that the accused must be given an opportunity to make a representation against the sentence to be imposed on him. A bifurcated hearing for convicting and sentencing is necessary to provide an effective opportunity to the accused. Adequate opportunity to produce relevant material on the question of death sentence shall be provided to the accused by the Trial Court.”

The Court also observed that while the Trial Court and the High Court took into consideration the gravity of the crime while imposing death sentence, the mitigating circumstances and the probability of reformation and rehabilitation of the accused were not considered. The Court noticed that,

  • The Appellant was aged 25 years on the date of commission of the offence and belongs to a Scheduled Tribes community, eking his livelihood by doing manual labour.
  • No evidence has been placed by the prosecution on record to show that there is no probability of rehabilitation and reformation of the Appellant and the question of an alternative option to death sentence is foreclosed.
  • The Appellant had no criminal antecedents before the commission of crime for which he has been convicted.
  • There is nothing adverse that has been reported against his conduct in jail.

Therefore, the Court was of the opinion that the death sentence requires to be commuted to life imprisonment. However, taking into account the barbaric and savage manner in which the offences of rape and murder were committed by the Appellant on a hapless 11 year old girl, the Court sentenced the Appellant to life imprisonment for a period of 30 years during which he shall not be granted remission.

[Bhagwani v. Stat eof Madhya Pradesh, 2022 SCC OnLine SC 52, decided on 18.01.2022]


*Judgment by: L. Nageswara Rao


Counsels:

For appellant: Advocate Shri Singh

For State: Deputy Advocate General Ankita Chaudhary

Case BriefsSupreme Court

Supreme Court: In a big relief for three death row convicts, the 3-judge bench of L. Nageswara Rao, BR Gavai* and BV Nagarathna, JJ has acquitted all of them of charges of killing 6 members of their family after it was found that the prosecution had failed to prove the case beyond reasonable doubt.

The Prosecution story

It was Prosecution’s case that, on 23rd January, 2014, at around 8.30 p.m., Momin Khan, with his wife Nazra, along with Jaikam Khan (first cousin) and Sajid (Jaikam Khan’s son) came armed with knives and assaulted Mausam Khan   (father – 85 years), Asgari (mother – 80 years), Shaukeen Khan (brother), Shanno (sister-in¬law- 30 years), Samad (nephew – 8 years) and Muskan (niece-15 years) and killed them brutally.

The verdicts by the Trial Court and the Allahabad High Court

Vide judgment and order dated 2nd January, 2016, the Trial Court convicted all the four accused for the offence punishable under Section 302/34 of the IPC and sentenced them to death vide order dated 11th January, 2016. Momin, Jaikam and Sajid were also convicted for the offence punishable under Section 25/4 of the Arms Act and awarded rigorous imprisonment for a term of three years with a fine of Rupees Five Thousand and in case of default, they were to undergo additional imprisonment for a term of three months.

While the conviction and sentence imposed on Momin, Jaikam and Sajid was affirmed, Nazra was acquitted by the High Court.

The inconsistencies and lacunae in the prosecution case

  • The two witnesses were found to be interested witnesses and their testimony was found ‘neither wholly reliable nor wholly unreliable’ as though they could have witnessed the assault two victims, it was difficult to believe that they could have witnessed the assault on the other four deceased persons as allegedly the accused had murdered six deceased at different places of the house.
  • As per the prosecution version, the main motive behind the crime was the dispute over the management of the brick¬kiln between the accused Momin Khan on one hand and deceased Mausam Khan, deceased Shaukeen Khan and P.W.1-Ali Sher Khan on the other hand. However, as per the
  • P.W.1 ­Ali Sher Khan(Shaukeen Khan’s brother) and P.W.2 ­Jaan Mohammad (Ali Sher Khan’s brother-in-law) had admitted that Jaikam Khan and Sajid had nothing to do with the brick kiln business of deceased Mausam Khan nor was there any dispute between them. Hence, with regard to Jaikam Khan and Sajid, the prosecution has utterly failed to prove any motive and has also failed to prove any strong motive insofar as Momin Khan is concerned.
  • According to P.W.1¬Ali Sher Khan and P.W.2¬ Jaan Mohammad, a large number of villagers had gathered at the spot after the incident. However, none of the independent witnesses have been examined by the prosecution. Since the witnesses examined on behalf of the prosecution were interested witnesses, non¬examination of independent witnesses, though available, made the prosecution version doubtful.
  • Though fingerprints were taken at the spot, the fingerprint expert’s report was not placed on record.
  • Though the IO had come to the spot with the dog squad, report of the dog squad was also not placed on record.
  • The assertion of P.W.1¬Ali Sher Khan and P.W.2-Jaan Mohammad that they together had gone to the police station to lodge the report, was also contradicted by the evidence of the Constable Clerk at the police station. Further, not informing the Police on phone, despite having mobile phones, also casts a serious doubt with regard to the genuineness of the prosecution case.

“Shocked” and “amazed” at the findings of the Trial Court and the High Court

Referring to a paragraph of the Trial Court’s judgment, the Court said it was “shocked” at the finding and that,

“The narration makes for an interesting reading as a story. However, all the observations are nothing but conjectures and surmises, without there being any evidentiary support to them. It is really surprising, as to how the Additional Sessions Judge could have dealt with the present case in such a casual manner when he was considering the question of life and death of four accused.”

The Court was also “amazed” by the manner in which the High court has dealt with the present matter as it had attempted to put a burden on the accused, which, as per the well settled law, does not shift unless prosecution has proved the case beyond reasonable doubt.

The Court observed,

“While coming to the conclusion that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt, we are at pains to observe the manner in which the present case has been dealt with by the trial court as well as by the High Court, particularly, when the trial court awarded death penalty to the accused and the High Court confirmed it. The trial court and the High Court were expected to exercise a greater degree of scrutiny, care and circumspection while directing the accused to be hanged till death.”

All death row convicts walk free

Finding that the prosecution had utterly failed to prove the case beyond reasonable doubt, the Court held that the conviction and death sentence imposed on the accused was totally unsustainable in law. The Court, hence, acquitted all three convicts of the charges and ordered their release.

[Jaikam Khan v. State of Uttar Pradesh, 2021 SCC OnLine SC 1256, decided on 15.12.2021]


Counsels

For appellants: Senior Advocate Nitya Ramakrishnan, Advocate Dama Seshadri Naidu,

For P.W.1­: Advocate Anant Agarwal

For State: Additional Advocate General Vinod Diwakar


*Judgment by: Justice BR Gavai 

Legal RoundUpSupreme Court Roundups

“It is no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”

-Justice S. Ravindra Bhat

Attorney General for India v. Satish2021 SCC OnLine SC 1076


TOP STORIES


Story of the Month

POCSO| “Touch”, “physical contact” can’t be restricted to “skin to skin contact”; “sexual intent” is the key. SC reverses Bombay HC’s “dangerous precedent” 

A 3-judge bench of UU Lalit, Bela Trivedi and S. Ravindra Bhat, JJ has set aside the Bombay High Court judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’. 

Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench had expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. The said judgment had caused a huge uproar in January 2021, especially since the “shocking” opinion came from a woman judge. 

When the matter reached before the Supreme Court, Justice Bela Trivedi, writing for herself and Justice UU Lalit, held that

“The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.” 

Read more… 


SC relief to death row convicts who killed 8 members of their brother’s family over property dispute; To serve LI for 30 years

“There is a bounden duty cast on the Courts to elicit information of all the relevant factors and consider those regarding the possibility of reformation, even if the accused remains silent.”

Read more…

__________________________________________________________________________________

5-year-old raped, killed, thrown into a stream: SC commutes death sentence to life imprisonment

“There is no doubt that the appellant has committed an abhorrent crime, and for this we believe that incarceration for life will serve as sufficient punishment and penitence for his actions, in the absence of any material to believe that if allowed to live he poses a grave and serious threat to the society, and the imprisonment for life in our opinion would also ward off any such threat.”

Read more…

__________________________________________________________________________________

NEET| “Behind abstract number of ‘15 lakh students’ lie human lives”; SC asks NTA to rectify injustice caused to a “one-off” PwBD student

“Education plays a key role in social and economic inclusion and effective participation in society. Inclusive education is indispensable for ensuring universal and non-discriminatory access to education.”

Read more…

__________________________________________________________________________________

Land Acquisition| Applying 2-year limitation period as per Section 11A of 1894 Act for passing award in pending cases under Section 24(1)(a) of the 2013 Act impractical

Practical absurdities and anomalies may arise if the two-year period for making of an award in terms of Section 11A of the 1894 Act commencing from the date of issue of the declaration is applied to the awards to be made under Section 24(1)(a) of the 2013 Act.

Read more…


EXPLAINERS 



MORE STORIES 


Contractual clauses cannot run contrary to legislative intent

“General phraseology of a contract cannot constitute agreement to apply statutory amendments retrospectively.”

Read more…

__________________________________________________________________________________

Disinvesting of Hindustan Zinc Ltd.; SC smells irregularities in bidding process, directs full-fledged CBI enquiry in the matter

“There is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest.”

Read more…

__________________________________________________________________________________

Section 138 NI Act| Can’t defeat the complaint merely because it does not elaborate upon Managing Director’s authorization

“It would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation. The artificial person being the Company had to act through a person/official, which logically would include the Chairman or Managing Director. Only the existence of authorisation could be verified.”

Read more…

__________________________________________________________________________________

Some out of five accused abscond; remaining can still be tried for dacoity

“Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of ‘dacoity’.”

Read more…

__________________________________________________________________________________

National Security Act| Delay in considering representation; non-communication of rejection strike at the heart of fundamental rights of detenu

“Preventive detention in independent India is to be exercised with utmost regard to constitutional safeguards.”

Read more…

__________________________________________________________________________________

Merely having an explicit clause not sufficient to make time the essence of the contract

Whether time is of the essence in a contract’, has to be culled out from the reading of the entire contract as well as the surrounding circumstances.”

Read more…

__________________________________________________________________________________

Tamil Nadu’s loan waiver Scheme for small and marginal farmers upheld

The percentage distribution of the indebted agricultural households depicted the poverty that envelops the class of small and marginal farmers.

Read more…

__________________________________________________________________________________

Contractual bar on interest doesn’t only bar the parties from claiming it but also the Arbitrator from awarding it

“Once the contractor agrees that he shall not be entitled to interest on the amounts payable under the contract, including the interest upon the earnest money and the security deposit, the arbitrator in the arbitration proceedings being the creature of the contract has no power to award interest”

Read more…

__________________________________________________________________________________

Decreeing a claim while exercising jurisdiction under Section 37 of Arbitration and Conciliation Act 1996 impermissible

“While considering a petition under Section 34 of the 1996 Act, it is well-settled that the court does not act as an appellate forum. The grounds on which interference with an arbitral award is contemplated are structured by the provisions of Section 34.”

Read more…

__________________________________________________________________________________

‘Practically difficult to achieve absolute consistency in sentencing’ but here’s what the Courts should do

“It must be candidly acknowledged that there is an element of discretion present while adjudicating the issue of sentence, however, the same cannot be exercised in an unprincipled manner.”

Read more…

__________________________________________________________________________________

High Court cannot dismiss second appeal in limine without assigning any reasons

“Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted.”

Read more…

__________________________________________________________________________________

HC quashes proceedings based on “draft charge-sheet” yet to be placed before Magistrate! Clear abuse of S. 482 CrPC, holds SC

The High Court transgressed the scope of the powers conferred upon it by restricting the police from submitting the charge-sheet before the Magistrate and by further perusing the contents of the “draft charge-sheet” in the proceedings before it.

Read more…

__________________________________________________________________________________

Not wise to shift burden of proof on accused merely because of rampant increase in henious crimes; SC acquits man in a 2009 dacoity case

“The acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent.”

Read more…

__________________________________________________________________________________

SC not pleased with Raj HC granting bail merely by “keeping in view the facts and circumstances of the case”; says Courts must record reasons

“The duty to record reasons cannot be obviated by recording submissions, followed by an omnibus “in the facts and circumstances” formula.”

Read more…

__________________________________________________________________________________

Not open for Courts to usurp function of disciplinary authority; Can’t substitute one disciplinary punishment with other

“The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon.”

Read more…

__________________________________________________________________________________

Land Acquisition| Right under Section 5A of 1894 Act to stave off compulsory acquisition cannot be unjustifiably extinguished

“The authorities must remain alive and alert to the precious right created in favour of the citizens which is not meant to be a mere empty ritual.”

Read more…

__________________________________________________________________________________

‘Project Proponent not expected to anticipate changes in Environmental Clearance regimes’; SC protects already constructed buildings by Pune Developer

“A Project Proponent is not expected to anticipate the changes in Environmental Clearance (EC) regimes, especially as a result of judicial interventions, and keep revisiting the sanctioned clearances by the competent authority or even raze down validly constructed structures. Neither can it be expected to knock the doors of an authority, not empowered at the relevant time, to process its applications. Such a scenario would render the process akin to a Sisyphean task, eternally inconclusive and never ending.”

Read more…

__________________________________________________________________________________

‘Irregularity in cognizance order does not vitiate trial’; SC finds no “failure of justice” in cognizance by Special Judge in Karnataka iron ore illegal mining case

“For vitiating the proceedings, something more than a mere lack of authority has to be established.”

Read more…

__________________________________________________________________________________

SC allows sand mining in Bihar; says total ban gives rise to illegal mining; causes huge loss to public exchequer

“When legal mining is banned, it gives rise to mushroom growth of illegal mining, resulting into clashes between sand mafias, criminalization and at times, loss of human lives.”

Read more…

__________________________________________________________________________________

Law abiding ex-employees cannot be put to disadvantage merely for vacating the quarters on notice; SC holds decision to grant quarters only to unauthorized occupants is illegal

“To allot the plots to those employees who were found to be in unauthorized occupation would tantamount to giving a premium to their illegality and remaining in occupation and possession of the quarters illegally and unauthorizedly.”

Read more…
__________________________________________________________________________________
Military Services| “Much water has flown in the Ganges”; SC expresses dismay over appointments made from 1983 select panel after a lapse of 4-5 years

“No one has questioned their appointments…more than 34 years have rolled by and much water has flown in the Ganges and persons have later promoted to their promotional posts and few of them have retired.”

Read more…

__________________________________________________________________________________

Written instruments entitled to much higher degree of credit than parol evidence; Old partnership deed clauses not superseded by new deed will continue to operate

“It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment the parties to be proved by the uncertain testimony of slippery memory.”

Read more…

__________________________________________________________________________________

Mere renumbering of case file by the NIA Mumbai does not take away power of the ATS to continue investigation; SC affirms HC’s decision in Bombay bomb blast conspiracy case

“Mere receipt and recording of such information (through an FIR) by itself does not mean that the investigation has also commenced. Rather, the investigation commences when the police takes the first step (of proceeding to the spot or collecting evidence or speaking to a witness or arresting the accused person) on the basis of such information.”

Read more…

__________________________________________________________________________________

Lessee learns of cancellation of tender from Newspaper Report. SC holds authority can’t circumvent the requirement of providing effective hearing

“Natural justice is the sworn enemy of intolerant authority”

Read more…


CASES REPORTED IN SUPREME COURT CASES


An overview of the cases reported in the latest SCC Volumes

__________________________________________________________________________________

2021 SCC Vol. 7 Part 3

2021 SCC Vol. 7 Part 4

2021 SCC Vol. 8 Part 1

2021 SCC Vol. 8 Part 2

__________________________________________________________________________________

SCC Snippets on important law points 

__________________________________________________________________________________

Using ‘promotion’ and ‘upgradation’ interchangeably? You won’t after reading this SC verdict

In Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamy(2011) 9 SCC 510, the bench of RV Raveendran and Markandey Katju, JJ laid down principles relating to the promotion and upgradation.

Read more…

__________________________________________________________________________________

Contract of Insurance vis-à-vis the requirement of uberrima fides

In Vikram Greentech (I) Ltd. v. New India Assurance Co. Ltd., (2009) 5 SCC 599, the bench of DK Jain and RM Lodha, JJ explained how a contract of insurance needs to be interpreted.

Read more…


Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ. confirmed the death sentence awarded by the trial court to the accused−appellant for committing heinous crime of brutal sexual assault on a child aged 3-years and 9-months, and after that committing her murder. While confirming the death sentence in this rarest of rare cases, the High Court observed:    

“The act of the accused is gruesome and is committed in a diabolic manner. It is a heinous offence. It is unimaginable that a cheerful, frolicking child enjoying with her pet would provoke the feelings of lust in a man who is a father of two daughters and a son. The perversity in the mind of the accused is apparent and therefore, we are of the opinion that the aggravating circumstances in the present case outweigh the mitigating circumstances placed before the court in the course of hearing of the appeal.”

Factual Matrix

In the instant proceedings, the State sought confirmation of death sentence passed by the trial court against the accused. The accused also filed a criminal appeal against the order of the trial court whereby he was convicted and directed to be hanged by neck till he is dead for having committed offences punishable under Sections 302, 363, 376(2)(i) and 201 IPC, and Sections 8 and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

On the unfortunate day of 30-9-2013, the 3-years and 9-months old victim went out of her house to play with her dog, but did not return. Upon searching, her father found the dog tied to the watchmen’s chawl which was just next to the room of the accused (a watchman), but could not find her daughter. A missing report was lodged and investigation began. The dead body of the victim was found lying in a mud pond. The accused was arrested. The autopsy of the dead body showed that she was brutally sexually abused before she was put to death. On completion of trial, the accused was convicted and sentenced as mentioned above.

Law, Analysis and Decision

Circumstantial evidence

The instant case rested on circumstantial evidence. The father of the victim stated that while searching for his daughter, he saw their dog tied to a window in front of a room in the watchmen’s chawl. The legs of the dog were smudged by mud. The father saw the accused standing behind the house and there was mud smudged on his legs as well. Another prosecution witness, a watchman, stated that he saw the accused with a small girl and a dog standing on the road which lead towards the forest. Another witness, a rounder/supervisor attached to the Maharashtra Guard Force Security, stated that on the day of the incident the accused was absent from his duty as watchman. Upon being enquired, the accused told him that he was under stress and wanted to return to his village immediately.  In fact, in his cross-examination, this witness further disclosed that the accused had divulged to him that he had committed a great blunder and therefore desired to return to his village.

The High Court noted that the prosecution evidence indicated that the accused was last seen with a small girl and a dog in the afternoon of the day of the crime. Upon meticulous appreciation of evidence of the prosecution witnesses, the Court found that the testimony of none of the witnesses was shattered by way of cross-examination. The sterling testimony of these witnesses deserved to be relied upon.

The Court noted that the evidence would establish that the accused was lastly seen with a child who was found dead soon thereafter. This was to be read in consonance with the fact that the dog was tied to the window of a room just next to the house of the accused. Apart from last seen theory, the scene of offence panchanama as drawn by the investigating agency further substantiated the case of the prosecution.

Medical evidence

Apart from the circumstantial evidence, the medical evidence also assumed importance. The accused was taken for medical examination on 4-10-2013. Upon clinical examination, it was observed that there was abrasion on foreskin and congestion of glance penis. It was further opined that the age of injury was 4 to 5 days old.

The Court recorded that there was nothing to deny the medical opinion. The accused did not assign any reason for the injuries on his private parts. The injuries went unexplained. However, it showed that the accused had sexual intercourse with a small child 2 to 4 days ago. This opinion was corroborated by the evidence of another doctor who performed autopsy on dead body of the victim.

Referring to Modi’s Medical Jurisprudence which discussed the nature of injuries on the person of an accused in a case of forcible sexual intercourse, the Court noted that there would be injuries on the penis which would be within the special knowledge of the accused. In fact, the injuries were within the special knowledge of the accused and he ought to have given explanation for the same.

Extra-judicial confession

Another incriminating circumstance against the accused was the evidence of the supervisor to whom the accused made an extra-judicial confession to the extent that he was under stress. The specific reason for stress was not divulged. However, the accused confessed that he had done a wrong thing.

The Court observed that there is no doubt that an extra judicial confession is a weak piece of evidence. However, it reflected upon the conduct of the accused on the day of incident.

Quantum of sentence

The High Court heard the accused on the point of sentencing through video conferencing. The Court spoke to the accused personally and he did not show any remorse. The only mitigating circumstance put forth by him was economic stringency of his family. The Court was convinced that the act committed by the accused was gruesome and revolts human conscience.

After relying on the decisions in Vasanta Sampat Dhupare v. State of Maharashtra, (2017) 6 SCC 631 and Ramnaresh v. State of Chattisgarh, (2012) 4 SCC 257 on the principles of sentencing, the High Court recorded that the accused did not for a moment thought of the precious life of the minor child. It did not strike him for a moment that he himself  happens to be a father of two daughters, who are yet to see the life. The crime smacks of degradation of a girl child, depravity and perversity of his mind. The child was sexually assaulted in barbaric and inhuman manner. It is diabolic in nature and thereafter, it was a brutal murder which makes it the rarest of rare case. The Court observed:

“It is such an incident that parents of every small girl child would feel a chill down the spine before sending their undefended, innocent, minor girl child to see the rainbow as they would be scared as to whether she would fall a prey to any monster like the present one. It is the safety of a girl child which is of paramount importance to a society.”

The Court concluded that it is the bounden duty of the courts to impose a sentence which is proportionate to the offence committed by an accused. The accused in the instant case deserved death penalty, as any alternative punishment would be unquestionably foreclosed taking into consideration the inhuman and barbaric act of the accused. The prosecution has proved the chain of aggravating circumstances as against the mitigating circumstances beyond reasonable doubt. The act of rape and the manner in which the child was murdered and abandoned in the muddy pond invited indignation and abhorrence. Hence, the death penalty awarded to the accused was confirmed. And the criminal appeal filed by the accused was dismissed. [State of Maharashtra v. Ramkirat Munilal Goud, 2021 SCC OnLine Bom 4562, dated 25-11-2021]

Case BriefsSupreme Court

Supreme Court: In a case where a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream, the 3-judge bench of L. Nageswara Rao, Sanjiv Khanna* and BR Gavai, JJ has, finding hope for reformation and rehabilitation of the appellant, commuted his death sentence to that of life imprisonment.

The Court, however, stipulated that the appellant shall not be entitled to premature release/remission before undergoing actual imprisonment of 30 years for the offence under Section 302 of the Code and further the sentences awarded shall run concurrently and not consecutively.

The trial court had recorded that the death sentence was awarded on the ground that “the crime was committed in an extremely diabolical manner and that it was cruel, barbaric and revolting.” The High Court has noted that there are no mitigating circumstances at all.

Appellant’s counsel argued that the trial court merely noticed that the appellant was of young age (23 / 25 years) belonging to a very poor family, but has not considered these as mitigating factors. The High Court has noted that there are no mitigating circumstances at all.

The State, on the other hand, brought to the Court’s notice that the data compiled by the National Crime Records Bureau shows that an average of 77 acts of rape were committed daily in India in the year 2020.  The State, hence, defended the death sentence on the grounds that the actions of the appellant constitute a grave and uncommon crime endangering the moral fabric of the society. It was argued that the matter falls in the category of ‘rarest of the rare’ cases as the appellant, under the pretext of giving biscuits, committed rape and murder of a five-year old girl, and threw her dead body into the stream. The deceased could not have provided resistance, much less provocation for the crime.

The Supreme Court, disagreeing with the observations of the Trial Court and the High Court, noted down the following mitigating factors that weighed with against imposition of death penalty which is to be inflicted only in rarest of the rare cases:

  • there is no material shown by the State to indicate that the appellant cannot be reformed and is a continuing threat to the society. On the contrary, it can be seen from the Death Sentence Prisoner Nominal Roll dated 17th July 2017 issued by the Chief Superintendent, Central Prison, Belgaum, that the conduct of the appellant in jail has been ‘satisfactory’ which reflects his desire to reform and take a humane turn.
  • the young age of the appellant at the time of commission of the offence (23 / 25 years),
  • his weak socioeconomic background,
  • absence of any criminal antecedents,
  • non pre-meditated nature of the crime,
  • the appellant has spent nearly 10 years 10 months in prison
  • the State has not shown anything to prove the likelihood that the appellant would commit acts of violence as a continuing threat to society.

The Court, hence, noticed that,

“There is no doubt that the appellant has committed an abhorrent crime, and for this we believe that incarceration for life will serve as sufficient punishment and penitence for his actions, in the absence of any material to believe that if allowed to live he poses a grave and serious threat to the society, and the imprisonment for life in our opinion would also ward off any such threat. We believe that there is hope for reformation, rehabilitation, and thus the option of imprisonment for life is certainly not foreclosed and therefore acceptable.”

[Irappa Siddappa Murgannavar v. State of Karnataka, 2021 SCC OnLine SC 1029, decided on 08.11.2021]

*Judgment by: Justice Sanjiv Khanna

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Ramesh Sinha and Rajeev Singh, JJ., upheld the capital punishment of a man who murdered his wife and four minor daughters.

Appellant was charged for offence punishable under Section 302 of Penal Code, 1860.

Aggrieved by conviction and sentence, the accused preferred a Criminal Appeal from Jail. Also, the trial court made a reference for confirmation of the death sentence awarded to the accused.

Instant case was based on circumstantial evidence and the appellant had been convicted and sentenced to death by the trial Court for murdering his wife and children vide impugned judgment.

In respect to convict the person in a case of circumstantial evidence, the Supreme Court in the celebrated case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 3 SCC 116, laid down the conditions to be fulfilled before a case against an accused can be said to be fully established.

Hence, while dealing with circumstantial evidence, the onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea.

In a case of circumstantial evidence, conditions precedent before conviction could be placed on circumstantial evidence, must be fully established such as:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ”must’ or ”should’ and not ”may be’ established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

In the present case, as is apparent from the evidence on record that there appears to be a motive for the appellant to commit the murder of his wife Sangeeta along with her children, which is established from the evidence of PW2-Chatra Pal Raidas, who is the real brother of deceased Sangeeta. PW2, in his deposition before the trial Court, stated that his sister Sangeeta, who used to come to his house and stayed there for about 1-2 months, had made a complaint to him about the illicit relationship of the appellant with Manju; Manju had become pregnant from the appellant; and the appellant wanted to marry with Manju, which was objected by his sister Sangeeta; and the appellant was adamant to marry with Manju, on account of which, the appellant committed the murder of his wife deceased Sangeeta along with four minor children, who was living along with the appellant in his house. P.W.2-Chatra Pal Raidas further stated that when Sangeeta had come to his house, she told about the aforesaid fact. He also stated, in his evidence, that ten days prior to the incident, the deceased Sangeeta had come to his house and in the presence of his neighbours, namely, Chailbihari and Balgovind, had also disclosed about the illicit relationship of the appellant with Manju. Thus, the motive to commit the murder of the deceased Sangeeta along with her children stood proved from the evidence of PW2 and there is no reason for him to depose falsely against the appellant.

It would also be pertinent to mention that another motive of the appellant to commit the murder of his wife and his children, as has been apparent from the evidence of P.W.1 and P.W.2, that the appellant, on taking advantage of the murder of his wife and children, wanted to get compensation from the State Government as earlier also the appellant had taken the compensation for the murder of his real brother Siyaram, which was paid by the State Government to the tune of Rs 4-5 Lakhs, and which was, in fact, given to the daughter of deceased Siyaram, namely, Gudiya but he managed to take the said compensation from Gudiya, who died on account of illness.

Prosecution proved beyond doubt that the appellant had a motive to commit the murder of his wife and his 4 minor children.

Bench stated that it would be apt to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.

The principles that come out are as follows:

  • The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution;
  • It should be made voluntarily and should be truthful;
  • It should inspire confidence;
  • An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence;
  • For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and
  • Such statement essentially has to be proved like any other fact and in accordance with law.

Bench stated that the accused had strong motive to commit the murder of his wife at the time of the incident, the appellant and the five deceased were the only occupants in the house, in which they were living together; after the arrest of the appellant at his pointing out the weapon of murder and his blood stained clothes were recovered which he had concealed; soon after the incident, the appellant made an extra judicial confession before PW3 and PW 4 admitting his guilt.

From the totality of circumstances and entire evidence on record, it was proved that no one else but the appellant alone committed the murder of his wife and four minor daughters.

Hence, trial court’s order was upheld.

‘Death Sentence’ awarded under Section 302 of IPC

It is true that capital punishment has been the subject-matter of great social and judicial discussion and catechism.

The ratio laid down by the Supreme Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC 470 continue to serve as the foundation-stone of contemporary sentencing jurisprudence though they have been expounded or distinguished for the purpose of commuting death sentence, mostly in the cases of

  • conviction based on circumstantial evidence alone;
  • failure of the prosecution to discharge its onus re: reformation;
  • a case of residual doubts;
  • where the other peculiar ”mitigating circumstances outweighed the ”aggravating circumstances.

In the instant case, the accused/convict Ramanand has committed the murder of his wife and four minor innocent daughters aged about 7 years, 5 years, 3 years and the youngest one aged about one and a half month. It transpires from the evidence on record that the criminal act of the accused/convict was actuated to pave a way to marry one lady, namely, Manju, who was already married. It was the deceased Sangeeta (wife of the appellant), who opposed his marriage with Manju but the accused/convict was adamant to marry with Manju at any cost and in order to marry with Manju, accused/convict murdered not only murder his own wife but also his own four innocent minor daughters aged between one and half month to eight years in a most brutal and barbaric manner without their no-fault and without any rhyme or reason. Before murdering the deceased, the accused/convict had also chopped off various parts of their bodies and inflicted severe incised wounds as is evident from the post-mortem report.

Further, the Court added that the special reasons assigned by the trial Court for awarding extreme penalty of death were that the murder was horrifying as the accused-appellant was in a dominant position; victim was helpless being children aged about 7, 5, 3 years and the youngest one was just one and a half-month-old and the murder was premeditated and pre-planned one with a motive and committed in a cruel, grotesque and diabolical manner. The accused is a menace to the Society and, therefore, imposition of lesser sentence than that of death sentence, would not be adequate and appropriate.

Hence, the Court agreed with trial court and the instant case rightly falls in the category of ‘rarest of rare case’ warranting capital punishment.

Bench confirmed the appellant’ sentence under Section 302 IPC.[State of U.P. v. Ramanand, 2021 SCC OnLine All 451, decided on 9-07-2021]


Advocates before the Court:

Counsel for Appellant: – Govt. Advocate, Amicus Curaie, Rajesh Kumar Dwivedi

Counsel for Appellant: – Jail Appeal, Rajesh Kumar Dwivedi

Counsel for Respondent : – Govt. Advocate

Op EdsOP. ED.

“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment[1].”

The tussle between the proponents of death penalty and those against it is unrelenting. While the advocates in favour of capital punishment justify their stand on the basis of the deterrent and retributive principles of criminal jurisprudence, and those against it, term death penalty as “barbaric” and a rudiment of uncivilised thought process. Significantly, the Law Commission of India in its 262nd Report[2], inter alia, concluded, “death penalty does not serve the penological goal of deterrence any more than life imprisonment” and accordingly, recommended for the abolition of death penalty for all crimes, “other than terrorism related offences and waging war”. However, despite such recommendation(s), capital punishment continues to remain under the statute books as one of the forms of sanctions, which may be inflicted upon the convicts of serious offences. In fact, even the Supreme Court[3] has consistently upheld the constitutional validity of death penalty by noting, “so far the death penalty remains in the Penal Code the courts cannot be held to commit any illegality in awarding death penalty in appropriate cases”. Nevertheless, court’s power to grant capital punishment is not unrestrained, rather, is required to abide by the strict parameters of law and judicial precedents. Further, the Supreme Court[4] has unswervingly professed,

  1. … A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. Pertinently, these restrains, parameters, guidelines, etc., are not only applicable at the stage of actual grant of sanction, rather, restrictions extend until the capital punishment is finally executed.

The provisions under Chapter XXVIII[5] of the Code of Criminal Procedure, 1973 (CrPC/ Code) are illustrations of such statutory guidelines/principles, demanding mandatory compliance, prior to the execution of death sentence(s), awarded by Sessions Court. The Supreme Court in Union of India v. V. Sriharan[6], while dealing with the provisions under the said chapter and terming the same as a separate Code, observed, 84. … Sections 366 to 371 are placed for the relevant consideration to be mandatorily made when a death penalty is imposed by the trial court. Under Section 366, whenever a Sessions Court passes a sentence of death, the proceedings should be mandatorily submitted to the High Court,

100. … the confirmation of the capital punishment of death penalty, the whole procedure has been mandatorily prescribed to ensure that such punishment gets the consideration by a Division Bench consisting of two Judges of the High Court for its approval. Significantly, as per the provisions of Section 366(1) of CrPC[7], “When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.” Clearly, the said provision, unequivocally declares that the sentence of death, passed by Session Court, is automatically suspended on a reference made to the High Court, until the same is confirmed by the High Court. However, as per Section 366(2) of the Code, the Session Court/court passing the sentence of death is obligated to commit such a convict to jail custody under a warrant, until the final determination by High Court.

Significantly, the said provision was inserted under the Code[8], pursuant to the recommendations made by the Law Commission in its 41st Report[9]. Appositely, the Supreme Court in Sunil Batra v. Delhi Admn.[10], inter alia, while dealing with the provisions under Section 366 CrPC, observed,

  1. The purpose behind enacting Sub-section (2) Section 366 is to make available the prisoner when the sentence is required to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sentence as and when that situation arises. Similarly, the Supreme Court in Triveniben v. State of Gujarat[11], reiterated, 21. … prisoner who is sentenced to death and is kept in jail custody under a warrant under Section 366(2) is neither serving rigorous imprisonment nor simple imprisonment. In substance he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence.

Pertinently, as per the provisions of Section 369 of the Code[12], the death reference(s) made by the Court of Session to the High Court are placed before, decided and signed by at least two of Judges of the said High Court, “when such court consists of two or more Judges”. However, in the case of a conflict/difference of opinion between the Judges constituting such a Bench at High Court, as per the provisions of Section 370 CrPC[13], the said case/conflict has to be decided in the manner as provided under Section 392 of the Code[14]. Significantly, the Supreme Court in Joseph Peter v. State of Goa, Daman and Diu[15], duly acknowledged,

5. … the insistence of the Code on two Judges hearing the matter of such gravity as a death sentence involves is because of the law’s grave concern that human life shall not be judicially deprived unless at least two minds at almost the highest level are applied.

However, in the instant case, considering that only one Judicial Commissioner (out of sanctioned strength of two) was functional, the court, held,

5. Even so, exceptional situations may arise where two Judges are not available in a High Court and, in that narrow contingency, the Code permits what has now happened. We cannot fault the judgment on this ground either. In fact, while deciding so, the Supreme Court unambiguously noted that the provision[16], “obviously applies only to situations where the court, at the time of the confirmation of the death sentence, consists of two or more Judges”.

Significantly, the proceeding before the High Court in a death reference is not merely a mechanical exercise. On the contrary, it is trite law[17] that in a reference for confirmation of death sentence, High Court is required to examine the entire evidence for itself, independent of the Sessions Court’s findings/views. In this regard, the Supreme Court in Jumman v. State of Punjab[18], while considering the scope of High Court’s duty and power under such scenarios, held,

10. … it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law abovementioned it is for the High Court to come to an independent conclusion of its own.

Similarly, in Subbaiah Ambalam v. State of T.N.[19], the Supreme Court, while reiterating that for confirming death sentence, “the High Court has to consider the evidence afresh and to arrive at its independent finding with regard to the guilt of the accused”, remanded the matter to the High Court, lamenting under the observation,

“we are distressed to find that to the judgment appealed against this statuary requirement has not been complied with and a case involving death sentence has been disposed of in a casual manner”.

Subsequently, in State of Maharashtra v. Sahebrao[20], the High Court of Bombay, reiterating the settled principle(s) of “doctrine of ‘rarest, of rare case’ ” and “sufficient cause”, professed with extreme vehemence,

15. … All the sides of this aspect of confirming the death penalty have to be scrutinised with great care and caution. The “mitigating circumstances”, always play dominant role in confirming the death sentence. The mitigating circumstance has to be gathered and or collected and to be weighed from the facts and circumstances of the case. The confirmation of death sentences therefore cannot be based only on the precedents and or aggravating facts and circumstances of any other case. The essential and relevant mitigating circumstances of the particular case always play a role of negative elements against the positive theory of death punishment.

Appositely, Section 367 CrPC[21] enables/empowers the High Court(s) to make an inquiry into or take evidence, itself or direct such an enquiry to be made or additional evidence taken by a Court of Session(s), where it, “thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person”. Further, noticeably, though, none of the provisions under the instant Chapter confer a right on a convict to be heard before the High Court in the said proceedings,

7. Even so[22], the accused is afforded an opportunity of being heard. He is elaborately heard, both on fact as well as on law. He is also even entitled to show that the decision arrived at by the Sessions Court is not sustainable on facts and law and that he is entitled to be acquitted, considering the sacrosanct principle of audi alteram partem[23].

In fact, in this regard, the Supreme Court in Masalti v. State of U.P.[24], held,

8. Proceedings brought before the High Court for confirmation of a death sentence give a right to the condemned prisoner to be heard on the merits and to require the High Court to consider the matter for itself without being influenced by the conclusions recorded by the Court of Session.

Further, moving a step ahead, the High Court of Bombay[25], dispelled the argument the term “inquiry”, as contemplated under Section 367 CrPC would not “take-in”/encompass an examination of the accused under Section 313 CrPC[26], by noting,

22. Putting such a limitation on the powers of the High Court under Section 367 may in proper cases deprive the accused persons of an opportunity to offer explanation in respect of the incriminating circumstances which have been brought in the evidence and exposing him to the risk of a conviction even if he were to have a proper and plausible explanation to offer in respect of that circumstance and put him in the peril of sufferring a conviction for fault of his.

Section 368 of the Code[27], further, contemplates that in any case submitted/referred by Sessions Court under Section 366 thereof, the High Court may either confirm the sentence or pass any other sentence warranted by law or may annul the conviction and convict the accused of any offence of which Sessions Court might have convicted him or order a new trial on the same or amended charges or may acquit the accused. Clearly, the powers conferred on the High Court(s) under the said Chapter are quite wide in nature, for the provisions enumerated therein not only entitle the High Court to direct further enquiry or to take additional evidence, in fact, the High Court, may, in appropriate case, even acquit the accused person. Significantly, as per the Supreme Court[28], the power of High Court, under Section 368(c) CrPC to acquit an accused person, “can be exercised by the High Court even without there being any substantive appeal on the part of the accused challenging his conviction” and that proceeding envisaged therein “is a proceeding in continuation of the trial”. It is to be, however, appreciated that as per the proviso appended to Section 368 CrPC, the power of the High Court to confirm a death sentence may be exercised only, “after the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of”. Appositely, the Supreme Court in Bhupendra Singh v. State of Punjab[29], while dealing with the scope of exercise of power of High Court under a corresponding/pari materia[30] provision, in the event of simultaneous filing of appeal by a convict and death reference by the Sessions Court, observed,

4. … if an appeal is filed by a condemned prisoner, that appeal has to be disposed of before any order is made in the reference confirming the sentence of death. In disposing of such an appeal, however, it is necessary that the High Court should keep in view its duty under Section 375 of the Code[31] of Criminal Procedure and consequently, the court must examine the appeal record for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed.

Mr Justice Krishan Iyer once remarked[32],

1. A death sentence, with all its dreadful scenario of swinging desperately out of the last breath of mortal life, is an excruciating hour for the Judges called upon to lend signature to this macabre stroke of the executioner’s rope. Even so, Judges must enforce the laws, whatever they be, and decide according to the best of their lights.…

Undoubtedly, task of a Judge in sanctioning a convict is quite unpleasant and even more so when it entails, depriving an individual of his life. However, there are abundant judicial and statutory parameters, which ensure that the powers conferred on Judges are not abused or misused. Simultaneously, the provisions under Chapter XXVIII of CrPC also dictate several guiding principles for the case(s) where a convict of death sentence awaits determination of his fate by High Court. Further, whenever there is any ambiguity or uncertainty regarding the appropriateness and application of law, courts have consciously and voluntarily stepped in to lay down doctrines and codes, which ensure fairness and justice. In fact, the courts have consistently professed in favour of the pertinence of the principles of natural justice in the cases even where the statutory provisions are silent and do not exclude such application, expressly or by necessary implication. Understandably, the principles of natural justice are deep-rooted and pervade even the gaping recesses of gloomy and tedious proceedings such as that of death reference(s) before High Court(s). Such principles, including a right of being hear of a convict; passing of a reasoned and independent finding/ decision by High Court, etc., are, therefore, intrinsic and inextricably intertwined with the proceedings before High Court(s) in death reference, to ensure fairness, both, explicit and implicit in such proceedings. As a famous saying goes, “Justice should not only be done but should manifestly and undoubtedly be seem to be done.” The same holds true even for proceedings before High Court while determining/deciding death reference(s).


Advocate, Delhi High Court

[1] J.R.R. Tolkien.

[2] The Death Penalty, August 2015

[3]Vinay Sharma v. State (NCT of Delhi), (2018) 8 SCC 186

[4] Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[5] Sections 366 till 371 of the Code of Criminal Procedure, 1973 dealing with submission of death sentences for confirmation

[6] (2016) 7 SCC 1

[7] Section 366(1) of CrPC 

[8] Initially inserted under the corresponding provision, being, S. 374 of the Code of Criminal Procedure, 1898.

[9] September, 1969 (Vol. I)- Law Commission Report on the Code of Criminal Procedure, 1898. The Law Commission, accordingly, recommended, “It is noticed that when the accused is sentenced by the Court of Session to imprisonment for life, S. 383 expressly provides for the issue of a suitable warrant and the forwarding of the accused with the warrant to the jail in which he is to be confined. It is desirable that a similar provision should be made in S. 374 so that there may be specific statutory authority for holding the accused in prison after the Court of Session has passed sentence of death and until it is executed in due course.”

[10] (1978) 4 SCC 494

[11] (1989) 1 SCC 678

[12] Section 369 of CrPC 

[13] Section 370 of CrPC

[14] Section 392 of CrPC 

[15] (1977) 3 SCC 280 

[16] In the present case, the provision under consideration was S. 377 of the Code of Criminal Procedure, 1898, being pari materia/corresponding provision to S. 370 under the Code of Criminal Procedure, 1973.

[17]Refer to Balak Ram v. State of U.P., (1975) 3 SCC 219

[18]  AIR 1957 SC 469

[19] (1977) 4 SCC 603 

[20] 2004 SCC OnLine Bom 1186 : 2005 Cri LJ 2788

[21] Section 367 of CrPC

[22] Refer to Haidarkhan Lalkhan Pathan v. State of Gujarat, 1990 SCC OnLine Guj 16 : 1991 Cri LJ 1266

[23] One of the principles of natural justice and a Latin phrase meaning, “listen to the other side”, or “let the other side be heard as well”.

[24] (1964) 8 SCR 133 

[25]Kaliram v. State of Maharashtra, 1989 SCC OnLine Bom 56: 1989 Cri LJ 1625

[26] Section 313 of CrPC 

[27] Section 368 of CrPC

[28] Atma Ram v. State of Rajasthan, (2019) 20 SCC 481

[29] AIR 1968 SC 1438 : (1968) 3 SCR 404 

[30] S. 376 of the Code of Criminal Procedure, 1898 corresponds with S. 368 of the Code of Criminal Procedure, 1973.

[31] Section 375 of CrPC 

[32] Refer to Joseph Peter v. State of Goa, Daman and Diu, (1977) 3 SCC 280

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the plea filed by Akshay Kumar Singh, one of the convicts in the 2012 Nirbhaya gang-rape and murder case, who had  challenged the order of rejection of his mercy petition by the President of India, inter alia, on various grounds that the settled principles of consideration of mercy petition have not been followed.

“we do not find any ground to hold that there was non-application of mind by the President of India. Insofar as the alleged torture of the petitioner in the prison”

Regarding the alleged torture in the prison, the Court said it cannot be a ground for review of the order of rejection of the Mercy Petition by the President of India.

On the ground that the Press interviews given by the persons in position of authority reported in the newspapers have influenced the decision of the President of India in rejection of the mercy petition, the Court said that

“when the decision has been taken by the highest constitutional authority like the President of India it cannot be said that the President of India was influenced by such interviews reported in the newspapers.”

It was also argued before the Court that the wife of the petitioner has filed divorce petition and the same is pending consideration and that if the death warrants scheduled for 20.03.2020 is executed what will be 4 the fate of the wife who has filed the divorce petition who has averred that she does not want to live as a widow of death row convict. On this the Court said,

“The divorce petition said to have been filed by the wife of the petitioner and the petitions filed by the petitioner before the Lieutenant Governor and Chief Minister of Delhi under Sections 432 and 433 Cr.P.C. cannot a ground for exercise of judicial review of the order of the President of India rejecting the Mercy Petition.”

Three of the four death row convicts in the Delhi gangrape case, including Gupta, had also approached the International Court of Justice (ICJ) earlier this month, seeking a stay on the execution of their death sentence.

All four accused are scheduled to be hanged tomorrow. 

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. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. 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.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

[Akshay Kumar Singh v. Union of India, WRIT PETITION (CRL.) No.121 of 2020, decided on 19.03.2020]


Also Read:

Nirbhaya Gangrape Case: Story From A Different World Where Humanity Has Been Treated With Irreverence

Hot Off The PressNews

Supreme Court: The Court has dismissed the curative petition of Pawan Gupta, one of the convicts in the 2012 Nirbhaya gang-rape and murder case, who had moved the court against the dismissal of his review plea. In his petition, Pawan has claimed that he was juvenile at the time of the crime in 2012.

This comes as Gupta, along with three other convicts, Mukesh Singh, Akshay Singh Thakur, and Vinay Sharma. are scheduled to be hanged on March 20 at 5.30 am.

Three of the four death row convicts in the Delhi gangrape case, including Gupta, had also approached the International Court of Justice (ICJ) earlier this month, seeking a stay on the execution of their 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. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. 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.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

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. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

(Source: ANI)


Also Read:

Nirbhaya Gangrape Case: Story From A Different World Where Humanity Has Been Treated With Irreverence

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, NHRC, India has received a complaint from Smt. Ram Bai, a resident of Ravidas Camp, R.K. Puram, Delhi through her counsel Dr. A.P. Singh seeking urgent intervention by the Commission in the matter to prevent alleged unlawful execution of her son, Mukesh Kumar who is presently confined at Jail No. 3, Tihar in Delhi in case FIR No. 413/2012 registered at Police Station Vasant Vihar, Delhi. The complainant has stated that all the accused including her son have been falsely implicated in the case and their execution in compliance of the court orders will be a miscarriage of justice. The complainant has stated that her son is also a witness in the case of custodial death of the co-accused Ram Singh who died inside Tihar jail, on 11.03.2013. The complainant has alleged many flaws in the investigation of the case registered in connection with the custodial death of the deceased prisoner, Ram Singh and that no compensation has been given to the NOK of the deceased prisoner.

It is further mentioned by the complainant that legal remedies/cases are pending for disposal before different courts/ constitutional bodies on behalf of the death row convicts, including her son but the authorities are still planning to hang them, on 20.03.2020. The complainant has also stated that due to various kind of viral infections, pollution and other hazards, the life has become very short in Delhi NCR region hence, the death penalty and its execution is not at all justifiable.

The complainant has requested the Commission to stay the execution of the death sentence imposed on the convicts including her son which is fixed for 20.03.2020.

The Commission has carefully examined the contents of the complaint. The son of the complainant is one of the accused in a case Crime No. 413/12 registered at PS Vasant Vihar in which death sentence has been awarded by the competent court and upheld by the Apex court. The case relating to the death of one of the accused in this criminal case, Ram Singh had come before the Commission when an intimation was received from the jail authorities in accordance with the guidelines issued by the Commission directing the authorities to report all the custodial deaths to it within 24 hours of the occurrence.

The case was registered vide No. 1543/30/9/2013-JCD. The matter was taken up by the Investigation Division of the Commission and the requisite reports were obtained from the authorities concerned. A magisterial enquiry was also conducted in the matter. There were some allegations raised by the family members that the deceased prisoner had not committed suicide and he was killed in the judicial custody. The Inquiry Magistrate after examination had held that there was no foul play or negligence in this case of custodial death and the Commission, upon consideration of the reports and the recommendations made by its Investigation Division, had closed the case, on merits. Since, there was no negligence on the part of any of the authorities, no compensation was recommended by the Commission.

Upon perusal, the Commission has not found any substance sufficient for taking cognizance of the matter. The case relating to custodial death of the deceased co-prisoner Ram Singh has been disposed of by the Commission on merits, as explained above. So far as the prayer made by the complainant to stay execution of the death sentence is concerned, it is apparent that the said convict Mukesh Kumar has already approached the appropriate authorities and the authorities have exercised their jurisdiction judiciously. The matter is outside the purview of the Commission. The complaint is, therefore, dismissed in limini.


NHRC

Press Release dt. 17-03-2020

Hot Off The PressNews

As reported by media, Three of the convicts in Nirbhaya Gang Rape and Murder case have approached the International Court of Justice to stay the execution of their death sentence that is to be awarded on 20-03-2020.

The three convicts are Akshay Singh, Pawan Gupta and Vinay Sharma.


[Source: ANI]


Also Read:

Nirbhaya Gangrape Case: Story From A Different World Where Humanity Has Been Treated With Irreverence

Breaking | Nirbhaya Gang Rape-Murder Case | Death Warrant Issued To The 4 Convicts By Delhi’s Patiala House Court

Nirbhaya Gang Rape – Murder Case | Breaking | Delhi HC Refuses To Set Aside Trial Court’s Order; Convicts To Be Hanged Together

Nirbhaya Gang Rape – Murder Case | All 4 Convicts To Be Hanged On 03-03-2020 — Death Warrants Issued

Nirbhaya Gang Rape And Murder Case | Response Sought From Tihar Jail Authorities On Convict Vinay’s Plea For Medical Treatment Regarding Mental Illness

Del HC | Petition Dismissed Seeking Directions To NHRC To Intervene And Enquire Into Mental And Physical State Of 4 Death Row Convicts In Nirbhaya Case

Breaking | Nirbhaya Gang-Rape Murder Case | Delhi Court sets the execution date of Nirbhaya Convicts to be — 20-03-2020

Hot Off The PressNews

Supreme Court:  A 3-judge bench of Arun Mishra, Vineet Saran, and MR Shah, JJ has commuted the death sentence of a convict, Manoj Suryavanshi, in the 2011 Chhattisgarh triple murder case to life imprisonment and said that the convict should be kept in jail for at least 25 years.

A Bilaspur court had on May 5, 2013, sentenced Suryavanshi to death for murdering and hiding the bodies of three children in 2011, a decision which was upheld by the Chhattisgarh High Court on August 8, 2013. The three children, namely Vijay Dhiver (8), Ajay Dhiver (6) Sakshi Dhiver (4), were found dead in a field in Bilaspur district on February 11, 2011. Suryavanshi was working as a labourer at the house of Shivlal Dhiver, the complainant and father of the victims, when his wife — Sumrit Bai — went missing. Suryavanshi suspected that she had eloped with the younger brother of Dhiver, following which he killed the children.

A special leave petition was filed in the Supreme Court in the matter on September 9, 2013.

(Source: ANI)

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar and Gautam Chourdiya, JJ., while addressing the present criminal reference wherein the deceased/victim was a Five and a half Year deaf and dumb girl who was brutally raped and murdered by the accused, held that,

…considering the depraved and shameful manner in which the offence has been committed, the said mitigating factor would not outweigh the aggravating factors and as such, we are satisfied that present case falls within the ambit of “rarest of rare case”.

Informant –father of the deceased had informed that despite search at various places deceased was not traceable, therefore he expressed his suspicion on some unknown person who would have allured and abducted his daughter. FIR was registered against unknown person for offence under Section 363 Penal Code, 1860.

Kunti Sona (accused 3) informed the police that her younger son informed her that brother Ram Sona had murdered a girl and has kept the dead body in the house. Her son Ram Sona and his friend Keli reached the house and all three concealed the dead body in a muddy Nala besides the railway track and that she could point out the place.

Keli informed the IO that he had seen Ram Sona committing rape and thereafter murdering the deceased/victim, he also saw the deceased bleeding from her private parts.

Accused Ram Sona disclosed to the police that when the deceased was playing he brought her in his house by luring her, when he reached the house, his friend Keli was watching TV and when he was committing rape, his friend tried to restrain him and later on he thrashed her head on the ground due to which she became unconscious.

Further, he adds. That out of fear he gagged her, killed her and concealed the dead body. He also disclosed that the next day his brother Dipak informed that members of the locality were looking for him and he may be thrashed.

Based on the evidence on record, trial judge convicted the accused and sentenced accused Ram Sona to be hanged till death for the offence under Section 376(A) and 302 of IPC, with other sentences for remaining charges.

Appellants Counsel, argued that names of the accused persons were note mentioned in the FIR, therefore they were framed subsequently by the prosecution, as they were not finding the culprits. He further argued that abscondance of accused was neither a circumstance nor there was any evidence of such abscondance. Confession by Kunti Sona and Amrit Singh in their memorandum of statements cannot be admissible against Ram Sona as nothing pursuant to the same was recovered and stands inadmissible in evidence.

Fouzia Mirza, Additional AG – argued that under Section 30 of Evidence Act memorandum of statement of co-accused is admissible in evidence if it is self implicating.

Analysis and Decision of the Court

Bench drew the point of significance that the concentration should be on legality and evidentiary value of the memorandum statements of accused persons and to what extent they can be relied upon to establish one of the important circumstances against the appellant.

Court observed that all the three memorandum statements were proved by the prosecution. Accused Kunti and Amrit did not commit the main offence under Sections 376 and 302 of Penal Code but have only assisted the main accused Ram Sona in concealing the evidence of crime by disposing of the dead body, their disclosure statements were self inculpatory.

Bench referred to the decision of Supreme Court in Sukhvinder Singh v. State of Punjab, (1994) 5 SCC 152, wherein it was argued that the facts already discovered cannot be again discovered.

Balbir Singh v. State of Punjab, AIR 1957 SC 216, Supreme Court held that,

“…so far as the confessional statement of co-accused is concerned, it may be taken into consideration against the appellant if it fulfills the conditions laid down in Section 30 of the Evidence Act.”

Adding to its conclusion, Court also noted that confession of co-accused can be used when there are other corroborative evidence against the co-accused. Stage to consider the confessional statement arrives only after the other evidence is considered and found to be satisfactory.

Self inculpatory confession of accused can be used against the co-accused and there is no general proposition that it can never be used for any purpose.

Thus, the facts disclosed in the memorandum statement of Ram Sona find corroboration from the medical report, which found injuries over private parts of the deceased and over her head as well. It also corroborated the memorandum statement of Amrit Singh, who had stated that he had seen accused Ram Sona committing rape. It further corroborated from the memorandum statements fo accused Kunti Sona and Amrit Singh, who has stated that all the 3 concealed the dead body near muddy Nala besides the railway track.

Memorandum statements of Kunti Sona and Amrit Singh are therefore admissible in evidence against accused Ram Sona.

Bench with regard to absconcion of the accused Ram Sona stated that the same gained importance, as he was the person who was last seen together with the deceased.

“We are convinced that the chain of circumstantial evidence has been duly proved against all the accused including Ram Sona and it is he who brought the deceased to his house, committed rape and thereafter murdered deaf and dumb prosecutrix, aged about 5½ years.”

High Court considered,

 “Whether the death sentence awarded to accused Ram Sona is to be confirmed or the same deserves to be commuted to life imprisonment.”

In Supreme Court’s decision of Bachan Singh v. State of Punjab, (1980) 2 SCC 684, it was held that,

“…normal rule is that offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose sentence of death only when there are special reasons for doing so.”

“If Court finds that the offence is of exceptionally deprave and heinous character and constitutes, on account of its design and manner of its execution, a source of grave danger to the society at large, the Court must impose the death sentence.”

Another case that was relied on by the bench was of Laxman Naik v. State of Orissa, (1994) 3 SCC 381, in this case also the victim was a 7-year-old girl who fell prey to the accused’s lust and the Court held that,

“…The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers.”

“…appellant had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment.”

Hence, the High Court in view of the above-cited cases along with few others affirmed the conviction and death sentence imposed upon Ram Sona, Amrit Singh and Kunti Sona. [In ref. Of State of Chhattisgarh v. Ram Sona,  2020 SCC OnLine Chh 9, decided on 31-01-2020]

Hot Off The PressNews

Supreme Court: A bench headed by Justice NV Ramana has agreed to hear Central government’s appeal against Delhi High Court order, which rejected its plea to separately execute the four convicts in the Nirbhaya gangrape and murder case. The Court slated the matter for hearing on Friday after the Additional Solicitor General KM Nataraj, appearing for the Central government, mentioned the matter before the Court for an urgent hearing.

The Centre had challenged in the Supreme Court Delhi High Court’s order rejecting its plea for separately executing the four convicts in the case. The government, in the Supreme Court, contended that under the Delhi Prison Rules of 2018 the pendency of legal remedies or mercy petitions of other co-convicts would have no bearing on the fate of a convict whose plea for mercy has already been rejected. It said that the 2018 Rules does not prohibit the execution of death sentence of co-convicts, one by one, on the rejection of their respective mercy petitions.

Earlier, Solicitor General Tushar Mehta, had told the Delhi High Court that the convicts were playing with the judiciary. He said,

“there is a deliberate, calculated and well thought of design by the Nirbhaya gangrape and murder case convicts to “frustrate mandate of law” by getting their execution delayed.”

The Centre, in its plea before the Supreme Ccourt, contended that deferring the execution of death sentence of all the four convicts, specifically when Mukesh’s mercy plea has already been dismissed by the President, has led to a gross miscarriage of justice to the victim’s family as well as the society as a whole.

Delhi High Court had, on Wednesday, granted a week’s time to the four death row convicts to avail all legal remedies available to them and said that the convicts cannot be hanged separately since they were convicted for the same crime. The High Court had passed the order while hearing petitions filed by the centre and Tihar jail authorities challenging the Patiala House Court’s order which had stayed “till further order” the execution of the four convicts in the matter. The Delhi High Court had held that the 2018 Rules observe that pendency of any application filed by one convict would necessarily require the postponement of the death sentence of all his co-convicts, even those whose mercy plea had
been rejected.

Meanwhile, President Ram Nath Kovind on Wednesday also rejected the mercy petition of the third convict, Akshay Thakur, in the gangrape and murder case, which took place on the intervening night of December 15-16, 2012.

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. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

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.”

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.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

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. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

Meanwhile, a Delhi Court has postponed the execution of Mukesh Kumar Singh, Pawan Kumar Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh till further orders.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ has refused to review it’s order dated 21.01.2020 wherein it had dismissed the SLP filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case, “reagitating” the plea of juvenility. The order of the Court read,

“We have perused the Review Petition and the connected papers carefully and are convinced that the order, of which review has been sought, does not suffer from any error apparent warranting its reconsideration.”

The Court , in the order dated 21.01.2020, had said,

“once a convict has chosen to take the plea of juvenility before the learned Magistrate, High Court and also before the Supreme Court and the said plea has been rejected up to the Supreme Court, the petitioner cannot be allowed to reagitate the plea of juvenility by filing fresh application under Section 7A of the JJ Act.”

Pawan Kumar had  contended that he was a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000 at the time of commission of the offence and that the same is apparent from the School Leaving Certificate. He claimed that as per his records, his date of birth is 08.10.1996 and therefore, on the date of alleged incident i.e. 16.12.2012, the petitioner was aged only 16 years 02 months and 08 days.

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. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

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.”

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.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

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. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

Meanwhile, a Delhi Court has postponed the execution of Mukesh Kumar Singh, Pawan Kumar Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh till further orders. The execution was scheduled for tomorrow i.e. 01-02-2020.

[Pawan Kumar Gupta v. State of NCT of Delhi, REVIEW PETITION(Crl.) No. 59/2020, decided on 31.01.2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

The Special Judge, CBI Cases, Ranchi has awarded the Death Sentence with a fine of Rs. 5000/- under Section 302 of IPC; Life imprisonment with fine of Rs. 5000/- each under Sections 376 & 449 of IPC and 7 years Rigorous imprisonment with fine of Rs. 5000/- under Section 201 of IPC to accused Rahul Kumar (Private person) resident of Dhurgaon, District-Nalanda (Bihar) in a case related to rape and murder of a victim.

CBI had registered a case on 28.03.2018 U/s 448/302/201/328/376/511 & 34 of IPC against unknown persons on the request of Jharkhand Government and further Notification from Government of India. The case was earlier registered on 16.12.2016 at Sadar Police Station, Ranchi and later handed over to CID of Jharkhand. It was alleged that on 15/16.12.2016, the victim, an Engineering Student of 4th Semester of an Engineering College, Ormanjhi, Ranchi who was alone in her house at Booty Basti, Ranchi, was found dead. On the fateful day i.e. on 16.12.16, in the early morning, the elder sister of the victim who was with her parents at Barkakana District Ramgarh tried to contact the victim on her mobile, however, when she did not get any response from the victim, she called up a neighbour to check. The lady neighbour, who was previously their tenant at Ranchi, visited the victim’s house and saw that the victim was found lying dead in her room. As soon as the news regarding rape/ murder of the victim spread, the students of the said Engineering College reached the place in the college buses and demanded immediate justice for the victim. The students also held a candle march. The movement of students of said Engineering College was also joined by other colleges and also supported by others including the local public.

CBI took over the investigation of the case from the State Police and found that one person namely Rahul Kumar who was living nearby areas two-three months ago from the date of occurrence and then left the place. During further investigation, it was found that Rahul Kumar, a resident of Dhurgaon, Distt: Nalanda(Bihar) was absconding. He had hidden his identity and used his name as Rahul Raj @ Aryan @ Rocky Raj @ Raj Srivastav @ Amit @ Ankit. After sincere efforts, he was traced. He was earlier arrested by Uttar Pradesh police. After taking production warrant, Rahul was produced from Lucknow Jail and remanded in this case. The accused was examined and his blood sample was obtained for DNA examination. The DNA profile of Rahul Kumar was matched with the deceased.

After thorough investigation, CBI filed a Charge Sheet in the Designated Court on 13.09.2019 against accused Rahul Kumar. The Court framed charge against the accused on 25.10.2019. Prosecution evidence started from 08.11.2019. During a very short period of about 16 days, all 30 prosecution witnesses were produced and examined by CBI.

The Trial Court found the accused guilty and convicted him on 20.12.2019.


Central Bureau of Investigation

[Press Release dt. 21-12-2019]