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

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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]


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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]

Case BriefsSupreme Court

Supreme Court: Noticing that where death sentence could be one of the alternative punishments, the courts must be completely vigilant and see that full opportunity at every stage is afforded to the accused, the 3-judge bench of UU Lalit, Indu Malhotra and Krishna Murari, JJ has laid down the below mentioned norms to ensure the same.

  • In all cases where there is a possibility of life sentence or death sentence, learned Advocates who have put in minimum of 10 years practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an accused.
  • In all matters dealt with by the High Court concerning confirmation of death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae.
  • Whenever any counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard and fast rule in that behalf. However, a minimum of seven days’ time may normally be considered to be appropriate and adequate.
  • Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the concerned accused.

The Court was hearing a case where the Amicus Curiae was called upon to defend the accused at the stage of framing of charges on the very day he was appointed. The Court was, hence, certain of the fact that the Amicus Curiae did not have sufficient time to go through even the basic documents, nor the advantage of any discussion or interaction with the accused, and time to reflect over the matter. Thus, even before the Amicus Curiae could come to grips of the matter, the charges were framed. Not only this, but the trial itself was concluded within a fortnight thereafter and the accused was awarded death sentence in the offence relating to murder of a 9-year-old girl.

The Court, hence, said that though expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial, however, in the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed.

“What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice.”

It was hence, held that the Trial Court on its own, ought to have adjourned the matter for some time so that the Amicus Curiae could have had the advantage of sufficient time to prepare the matter. The approach adopted by the Trial Court may have expedited the conduct of trial, but did not further the cause of justice. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful.

“the entire trial was completed in less than one month with the assistance of the prosecution as well as the defense, but, such expeditious disposal definitely left glaring gaps.”

The Court, hence, set aside the conviction and directed a de novo consideration of the matter.

[Anokhilal v. State of Madhya Pradesh, 2019 SCC OnLine SC 1637, decided 18.12.2019]

Case BriefsSupreme Court

Supreme Court: In a ghastly case involving rape and murder of 2 children, the 3-judge bench of RF Nariman, Surya Kant and Sanjiv Khanna, JJ has refused to review their verdict in Manoharan v. State, (2019) 7 SCC 716, upholding  the conviction of the accused. In the said judgment, the bench had unanimously upheld the conviction, but gave 2:1 verdict on quantum of punishment.

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

FACTUAL BACKGROUND

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

MITIGATING FACTORS CONSIDERED BY THE COURT IN THE REVIEW PETITION

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

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

Backward socioeconomic circumstances

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

Remorse

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

Young age and aged parents

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

Criminal Record

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

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

Nariman and Surya Kant, JJ, hence, held

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

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

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

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

Case BriefsSupreme Court

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

FACTUAL BACKGROUND

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

QUANTUM OF PUNISHMENT

MAJORITY VIEW BY NARIMAN AND SURYA KANT, JJ

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

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

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

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

MINORITY VIEW BY KHANNA, J

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

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

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

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

He said,

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

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

He, hence, held,

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

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

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, MM Shantanagoudar and Indira Banerjee, JJ held

“it needs to be understood that prisoners tend to have increased affinity to mental illness. Moreover, due to legal constraints on the recognition of broad­spectrum mental illness within the Criminal Justice System, prisons inevitably become home for a greater number of mentally­ill prisoners of various degrees. There is no overlooking of the fact that the realities within the prison walls may well compound and complicate these problems.”

It said that the aspiration of the Mental Healthcare Act, 2017 was to provide mental health care facility for those who are in need including prisoners. The State Governments are obliged under Section 103 of the Act to setup a mental health establishment in the medical wing of at least one prison in each State and Union Territory, and prisoners with mental illness may ordinarily be referred to andcared for in the said mental health establishment.

The Court was hearing a case of a death row convict suffering from post-conviction mental illness. He is on death row since almost 17 years for rape and murder of 2 young girls. The Court was, hence, called upon to decide

• How culpability be assessed for sentencing those with mental illness?
• Is treatment better suited than punishment?\

The Court noticed that there are no set disorders/disabilities for evaluating the ‘severe mental illness’, however a ‘test of severity’ can be a guiding factor for recognizing those mental illness which qualify for an exemption. Therefore,

“the test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. These disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders­with schizophrenia.”

Test of severity of post-conviction mental disability

  • The post­conviction severe mental illness will be a mitigating factor that the appellate Court, in appropriate cases, needs to consider while sentencing an accused to death penalty.
  • The assessment of such disability should be conducted by a multi­disciplinary team of qualified professionals (experienced medical practitioners, criminologists etc), including professional with expertise in accused’s particular mental illness.
  • The burden is on the accused to prove by a preponderance of clear evidence that he is suffering with severe mental illness. The accused has to demonstrate active, residual or prodromal symptoms, that the severe mental disability was manifesting.
  • The State may offer evidence to rebut such claim.
  • Court in appropriate cases could setup a panel to submit an expert report.
  • ‘Test of severity’ envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that objectively the illness needs to be most serious that the accused cannot understand or comprehend the nature and purpose behind the imposition of such punishment.

Mitigation of sentence in case at hand

The Court noticed that the present accused has been reeling under bouts of some form of mental irritability since 1994, as apparent from the records placed before us. Moreover, he has suffered long incarceration as well as a death row convict. It is this state of ‘accused x’ that obliges the State to act as parens patriae. In this state ‘accused x’ cannot be ignored and left to rot away, rather, he requires care and treatment. The Court, hence, held,

“the petition is allowed to the extent that the sentence of death awarded to the Petitioner is commuted to imprisonment for the remainder of his life sans any right to remission.”

[‘X’ v. State of Maharashtra, 2019 SCC OnLine SC 543, decided on 12.04.2018]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, MM Shantanagoudar and Indira Banerjee, JJ has commuted the death sentence to 25 years’ imprisonment without remission in a case where the convict had raped and killed a 5-year-old girl. The Court said that there was scope of reformation considering that there was no prior offending history and also keeping in mind his overall conduct.

Factual background:

  • Child and her uncle travelled from their native place to the child’s school in the vehicle owned and driven by the accused
  • Uncle gave the custody of the child to the accused upon the assurance of the accused that he would take the child to school safely as had to pay his own daughter’s fees in the same school.
  • When the child did not return home that day an FIR was launched and the accused was apprehended after two days.
  • The school bag and the dead body of the deceased were recovered at the instance of the accused pursuant to the disclosure statement.
  • The accused also assigned a false explanation about leaving the company of the victim that he parted with the company of the child by leaving her at school and hence did not know what happened subsequently. However, the attendance register showed that the child had not come to school that day.

Aggravating/Mitigating Circumstances:

“life imprisonment is the rule to which the death penalty is the exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment, having regard to the relevant facts and circumstances of the crime.”

Considering all the aggravating and mitigating circumstances, the Court said that the accused has committed a heinous offence in a premeditated manner, as is indicated by the false pretext given to the victim’s uncle to gain custody of the victim.

“He not only abused the faith reposed in him by the PW4, but also exploited the innocence and helplessness of a child as young as five years of age. At the same time, we are not convinced that the probability of reform of the accused/appellant is low, in the absence of prior offending history and keeping in mind his overall conduct.”

With regard to the totality of the facts and circumstances of the case, the Court held that the crime in question may not fall under the category of cases where the death sentence is necessarily to be imposed.

Commuted Sentence:

Keeping in mind the aggravating circumstances of the crime as recounted above the Court said that the sentence of life imprisonment simpliciter would be grossly inadequate in the instant case. It hence, held:

“we deem it proper to impose a sentence   of   life   imprisonment   with   a   minimum   of   25   years’ imprisonment (without remission). The imprisonment of about four years as already undergone by the accused/appellant shall be set off. We have arrived at this conclusion after giving due consideration to the age of the accused/appellant, which is currently around 38 to 40 years.”

[Sachin Kumar Sighraha v. State of Madhya Pradesh, 2019 SCC OnLine SC 363, decided on 12.03.2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. AK Sikri, SA Nazeer and MR Shah, JJ has acquitted 6 death row convicts and has directed reinvestigation in a crime that was committed in June, 2003.

The Court was hearing the case where 5 people were brutally killed and a woman was raped. However, the accused were falsely implicated in the matter as they were all nomadic tribes coming from the lower strata of the society and are very poor labourers.

Lapse on part of investigating agency:

Noticing that an injured prime witness identified four named persons from the album of the photographs of notorious criminals but nothing was  on record whether those four persons were arrested or not or any further investigation was carried out with respect to those four persons, the Court said that there was a serious lapse on the part of the investigating agency, which has affected the fair investigation and fair trial, and therefore, the fundamental rights of the accused guaranteed under Articles 20 & 21 of the Constitution of India have been violated. It said:

“The benefit of the lapse in investigation and/or unfair investigation cannot be permitted to go to the persons who are real culprits and in fact who committed the offence.”

The Court, hence, directed the Chief Secretary, Home Department, State of Maharashtra to:

  • look into the matter and identify such erring officers/officials responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, real culprits are out of the clutches of law and because of whose lapses the case has resulted into acquittal in a case where five persons were killed brutally and one lady was subjected to even rape.
  • take departmental action against those erring officers/officials, if those officers/officials are still in service. The instant direction shall be given effect to within a period three months from the date of the order.

The Court also directed the prosecution to conduct further investigation under Section 173(8) against those four persons identified by the injured prime witness so that real culprits should not go unpunished.

Compensation to falsely implicated persons:

The Court also took note of the statement of a psychiatrist who had examined one of the accused who was subsequently found to be a juvenile. The juvenile had clearly opined that he has lived under sub-human conditions for several years. He was kept in isolation in solitary confinement with very restricted human contact and under perpetual fear of death. He was only allowed to meet his mother, and that too only infrequently. He was not even allowed to mix with other prisoners. Therefore, all the accused remained under constant stress and in the perpetual fear of death. As they were facing the death penalty, they might not have availed any other facilities of parole, furlon etc. All of them who were between the age of 25-30 years (and one of the accused was a juvenile) have lost their valuable years of their life in jail. Their family members have also suffered. Considering the aforesaid facts and circumstances, the Court directed:

“The State of Maharashtra to pay a sum of Rs.5,00,000/- to each of the accused by way of compensation, to be deposited by the State with the learned Sessions Court within a period of four weeks from today and on such deposit, the same be paid to the concerned accused on proper identification.”

[Ankush Maruti Shinde v. State of Maharashtra, 2019 SCC OnLine SC 317, decided on 05.03.2019]

Case BriefsSupreme Court

Supreme Court:

“The mercy petition is the last hope of a person on death row. Every dawn will give rise to a new hope that his mercy petition may be accepted. By night fall this hope also dies.” – Deepak Gupta, J

The 3-judge bench of NV Ramana, Deepak Gupta and Indira Banerjee, JJ commuted the death sentence of a man who was convicted for killing his wife and 5 children due to the the un­explained delay of 4 years in forwarding the mercy petition by the State of Madhya Pradesh leading to delay of almost 5 years in deciding the mercy petition.

The Court said that it has repeatedly held that in cases where death sentence has to be executed the same should be done as early as possible and if mercy petitions are not forwarded for 4 years and no explanation is submitted, it cannot but hold that the delay is inordinate and un­explained. The Court noticed:

“there not only was there a long, inordinate and un­explained delay on the part of the State of Madhya Pradesh but to make matters worse, the State of Madhya Pradesh has not even cared to file any counter affidavit in the Writ Petition even though notice was issued 4 years back on 18.11.2014 and service was effected within a month of issuance of notice.”

The Court also took note of the fact that the petitioner has now been behind bars for almost about 14 years as he was convicted on April 24, 2006. It, hence, held that regardless of the brutal nature of crime this is not a fit case where death sentence should be executed and it commuted the death sentence to life imprisonment. However, keeping in view the nature of crime and the fact that 6 innocent lives were lost, the bench directed that life imprisonment in this case shall mean the entire remaining life of the petitioner and he shall not be released till his death. [Jagdish v. State of Madhya Pradesh, 2019 SCC OnLine SC 250, decided on 21.02.2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The criminal appeal was filed before a Division Bench of P.K. Jaiswal and Anjuli Palo, JJ. by the accused to set aside the conviction and sentence passed under Section 363 of Penal Code and criminal reference to confirm death penalty awarded by First Addl. Sessions Judge, Nagod for a crime under Section 376(a)(b) of Penal Code.

Accused was convicted and was given death penalty for gruesome rape of a 4-year-old girl. Trial Court had charged the appellant under Sections 363, 376(a)(b) of Indian Penal Code and Section 5(j)(n) of Protection of Children from Sexual Offences Act. Trial Court had found him guilty. Appellant in this appeal challenged the findings of the Trial Court on the ground that there was no direct evidence against him and that its finding was contrary to the law and facts. The question before the court was whether the trial court had rightly convicted accused and whether this case comes under rarest of the rare category. High Court did not find any mistake while examining of the DNA and the testimony of the witnesses was also found to be reliable. Thus, Court viewed that Trial Court had rightly convicted appellant. Thereby, his conviction was maintained. Appellant urged that he was only aged about 28 years and had no previous criminal conviction.

High Court observed that a person who was performing the pious duty of a teacher had to nurture the character and morality in children and not commit a crime against them. Court after considering the facts and circumstances of the case along with the mitigating circumstances concluded that this case comes under the category of the “rarest of the rare case”. Therefore, this appeal was dismissed and sentenced to death penalty was affirmed. [Mahendra Singh Gond v. State of M.P., 2019 SCC OnLine MP 200, dated 25-01-2019]

Case BriefsHigh Courts

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

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

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