Hot Off The PressNews

Supreme Court: A bench head by R. Banumathi, J has reserved the order on the issue of rejection of mercy petition of Vinay Kumar Sharma, one of the convicts in the Nirbhaya gang-rape case. The bench will pronounce the verdict tomorrow at 2:00 PM.

Solicitor General Tushar Mehta, appearing on behalf of the Delhi government, said that convict Vinay Sharma was not kept in solitary confinement as it was argued by convict’s lawyer AP Singh in the Supreme Court.

“He was not kept in solitary confinement, as argued by advocate AP Singh. There is a limited scope of judicial review, as the President of India had rejected the mercy petition after SC reserved order duly considering and applying his mind,”

He further added,

“The Home Minister did not do it (dispose off the matter) immediately, as the Joint Secretary and Home Secretary discussed the matter in a detailed manner. The crime committed by the convict, Vinay Kumar Sharma, fell in the rarest of the rare category and did not fall in the category of mercy,”

Lawyer, AP Singh, representing Vinay, had earlier argued that the convict was kept in illegal confinement and “illegally tortured” in Tihar Jail. He argued,

“Vinay Sharma was kept in illegal confinement. He was illegally tortured in Tihar jail prison. I am here only to seek justice, where can I go for justice? That is why I am pleading here before the court for justice. They are not terrorists, they are not habitual offenders. These are the grounds for mercy to these convicts,”

He claimed that there has been a history of physical assaults on Vinay.

“Vinay had been sent for psychiatric treatment on many occasions. The petitioner has suffered adverse mental condition and faced immense trauma,”

The lawyer added,

“Vinay should have been treated with proper medical treatment for his poor mental health. He was provided complete medical treatment for his mental illness.”

Singh added that the “non-application” of mind by President of India is one ground for commutation of death sentence to life imprisonment.

“Why the mercy petition is rejected by the President of India so hurriedly? What is the need of doing it so hurriedly by the President of India.? Justice hurried is justice buried. Bifurcation of crime, committed by accused (convict) persons, was not done properly by the investigation team in the case,”

Vinay filed the petition in the top court against President Ram Nath Kovind’s decision to reject his mercy plea. The convict, through his lawyer AP Singh, has requested the death penalty to be commuted to life imprisonment. On February 1, Vinay’s mercy petition was rejected by the President.

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 sought response from the four death row convicts in the Nirbhaya gang rape and murder case on the Centre’s appeal challenging the Delhi High Court verdict which dismissed its plea against stay on their execution. The Court also granted liberty to the authorities to approach the trial court for issuance of fresh date for the execution of these convict.

It said that the pendency of the appeal filed by the Centre and Delhi government before it would not be an impediment for the trial court in issuing fresh date for execution of the convicts.

Solicitor General Tuhar Mehta, appearing for the Centre and the Delhi government, said the execution of the convicts is not for “enjoyment ” and the authorities are only executing the mandate of the law. Referring to the delaying tactics of the convicts, he said three of them have exhausted their remedies but one of them, Pawan Gupta, has not yet filed either curative plea in the apex court or mercy petition before the President. He said,

“the time granted by the High Court, namely, one week is expiring today and no further steps had been taken to avail any remedy by the convicts and, therefore, the petitioners be granted liberty to move the Trial Court for obtaining fresh date for execution of death warrant.”

He said the court has to keep in mind the impact of this on the society as despite the fact that appeals of the convict were dismissed by the top court in 2017, the authorities were “struggling to execute them even now”.

Mehta referred to the alleged encounter killing of four accused in the gang rape and murder case of a woman veterinarian in Hyderabad and said “people had celebrated after this and this was because people have started losing faith in the system. This reflects poorly on our system”.

The court had initially said that issuing notice to the convicts would further delay the matter but did it later on the appeal filed by the Centre and Delhi government.

The Court has listed the matter on February 13, 2020.

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.

[Union of India v. Mukesh, 2020 SCC OnLine SC 172, order dated 11.02.2020]

(With inputs from PTI)

Hot Off The PressNews

Supreme Court: The Centre has moved the Supreme Court for fixing a seven-day deadline for executing death penalty of condemned prisoners. The plea of the Ministry of Home Affairs (MHA) assumes significance in view of the the death row convicts in the sensational Nirbhaya gangrape and murder case of 2012 filing review, curative and mercy petitions, which has delayed their hanging.

The MHA’s plea sought a direction from the Supreme Court in fixing the deadline for filing of curative pleas after the rejection of review petitions. It also sought a direction that

“if the convict of death sentence wants to file mercy petition, it would be mandatory for a convict of death sentence to do so only within a period of seven days from the date of receipt of death warrant issued by the competent court”

The MHA submitted that the Court should

“mandate all the competent courts, state governments, prison authorities in the country to issue death warrant of a convict within seven days of the rejection of his mercy petition and to execute death sentence within seven days thereafter irrespective of the stage of review petition/curative petition/mercy petition of his co-convicts”.

The Court had, on January 20, had rejected the plea of a death row convict in the Nirbhaya gang rape and murder case challenging the Delhi High Court order which had dismissed his claim of being a juvenile at the time of offence saying he cannot re-agitate the issue by filing fresh application.

A Delhi court has recently issued fresh death warrants for February 1 against the four convicts — Vinay Sharma (26), Akshay Kumar Singh (31), Mukesh Kumar Singh (32) and Pawan (26) — in the case after their hanging got delayed from January 22 due to pending petitions.

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 she was thrown out on the road.

(Source: PTI)

Hot Off The PressNews

As reported by ANI, Delhi’s Patiala Court has issued death warrant to the 4 Convicts in the Nirbhaya Ganga Rape and Murder Case.

Court has stated 22-01-2020 as the date of hanging at 7 am in Tihar jail. Nirbhaya’s parents had appeared in the court with regard to expedite the procedure to hang the victims.

In December 2019 the Supreme Court had dismissed one of the convicts (Akshay Kumar Singh) review plea, one of the four men convicted in the case. The Apex Court had said that there were no grounds to reconsider his death penalty.

Besides the four convicts, two more were accused of rape and murder. Ram Singh, the fifth accused, committed suicide and a juvenile was released after three years in a reform home.


Supreme Court’s decision on the review petition filed by Akshay Kumar Singh -One of the Convicts: [18-12-2019]

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

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


[Source: ANI]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Bela M. Trivedi and A.C. Rao, JJ., dismissed an appeal filed on being aggrieved by the Judgment and order by the Additional Sessions Judge and Special Judge (POCSO), whereby it had convicted the appellant-accused for the offence under Sections 302, 363, 366, 376AB, 377 and 201 of the Penal Code, 1860 and under Sections 3(a), 4, 5(a), 5(r) and 6 of the Protection of Children from Sexual Offences Act, 2012, and had sentenced him to death penalty for the offence under Sections 302, 376AB of the Penal Code and had convicted him of the offences under the Atrocities Act.

The facts of the case stated as per the prosecution before the Special Court were that the appellant-accused was residing on the ground floor of the house owned by Shyam Narayan Pandey and the complainant along with his family had been residing in the same building on the first floor as a tenant and the appellant on 14-10-2018 between 8-8.30 pm kidnapped his minor daughter aged about 3 years and 6 months (victim) took her to his room committed rape on her and killed her by throttling. Thereafter in order to destroy the evidence put the body of the victim in a gunny bag in his room and locked the room from outside and fled away. After the complainant filed the missing report in the police station the investigation officer conducted an inquiry and since the room of the accused was locked the lock was broken and the body of the victim was found in a decomposed state. After collection of sufficient evidence against the accused the charge-sheet was filed before the Special Court. After appreciating the evidence on record, it convicted and sentenced the accused as per the impugned judgment and order which is challenged in the instant petition.

The counsel for the appellant-accused Radhesh Vyas stated that the whole case of the prosecution was rested on the circumstantial evidence, the confession made by the before medical examiner as well as when in police custody could not be relied upon and read as evidence, the CCTV footages provided did not cover the entire area of the society and couldn’t be termed as reliable piece of evidence, relying upon the cross-examination which submitted that there was a shutter in the room of the accused and possibility that the gunny bag could be placed through that shutter cannot be ruled out. Lastly relying on the Supreme Court judgment of Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh. v. State of Punjab, (1983) 3 SCC 470 he submitted that the Special Court had committed a gross error in not considering the mitigating circumstances before awarding capital punishment and relying on various other cases he tried to establish that the instant case did not fall in the category of the rarest of the rare case.

The counsel for the respondents Himanshu Patel, stated that even if the case was based on circumstantial evidence the prosecution had proved each and every circumstance without reasonable doubt proving guilt of the accused and wile at the time of the investigation he did not cooperate with it and had fled to his village the next morning of the incident and the investigation officer had found the body of the victim from his room, the postmortem reports clearly described that the victim was raped in a diabolical manner and brutally murdered by strangulation and then her dead body was kept in a gunny bag to decay and decompose. Late the accused was arrested from Bihar in a train going to Delhi. The DNA profile and other scientific investigations also proved that the accused was involved with the crime. The Court, therefore, had no hesitation in holding that trustworthy and credible evidence given by the prosecution had conclusively proved the guilt of the appellant/accused, excluding any possibility of his innocence.

The Court while dismissing the appeal and confirming the decision of the Special Court stated that the abhorrent and atrocious nature of crime committed by the appellant-accused in a diabolical manner, on the defenseless unprotected girl of 3½ years, without any remorse, has left the Court with no option but to consider the case as the “rarest of rare case” for awarding the punishment of death penalty. [Anil Surendrasingh Yadav v. State of Gujarat, 2019 SCC OnLine Guj 2692, decided on 27-12-2019]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Joymalya Bagchi and Suvra Ghosh, JJ., has recently observed in a case of rape and murder of a teenager aged just 13 years, that death penalty must only be invoked as a last resort when it is clear that there is no scope for the rehabilitation of a convict. The judges commented that one must not lose sight of the fact that the imposition of the death penalty is the last resort which the Court must do unwillingly and with a very heavy heart. It ought not to be awarded in cases where the glimmer of hope and rehabilitation is not completely lost. If upon balancing the aggravating and mitigating circumstances, if there seems to be even a tiny glimmer of possibility to salvage the soul of a condemned convict then every effort should be made towards that end.

The Court emphasised that concern for human dignity and life must underscore the jurisprudence on the death penalty. The Bench further added that even if a convict appears to lack sensitivity, a higher standard is expected in response, given the constitutional scheme of things. On an examination of aggravating and mitigating factors, the Court held, that there was potential for the rehabilitation of the convict, and commuted the death penalty to rigorous life imprisonment. The Court took into consideration the Correctional Home report which recommended that the convict had good and sociable conduct and his inmates described him as a supportive person. [State of West Bengal v. Albert Toppo, DR 4 of  2017, decided on 10-12-2019]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Joymalya Bagchi and Suvra Ghosh, JJ. upheld the conviction of the appellants for the commission of the offence punishable under Section 21(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case is based on the recovery at two places. Firstly, 3.5 kgs of heroin was recovered from the first appellant and 50 kgs of heroin was recovered from the rented house in the possession of the second appellant. The first appellant was sentenced to death and the second appellant was sentenced with rigorous imprisonment for 30 years and to pay a fine of Rs 3 lakhs in default to suffer rigorous imprisonment for one year or more. Aggrieved by these orders, first appellant filed the instant death reference which was clubbed with the appeal filed by the second appellant against his conviction.

Jayanta Narayan Chatterjee, representing the appellants, prayed for the acquittal of the appellants and argued that seizure of possession of 3.5 kgs of heroin is vitiated in law as it is not as per the terms of Section 50 of the Act. Also, the primary witness did not recognise the second appellant. Furthermore, the appellants denied making statements under Section 67 of the NDPS Act during their examination under Section 313 Code of Criminal Procedure, 1973.

The prosecution relied on the Supreme Court case of Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and argued that death penalty ought to be awarded in the present case as the first appellant has been convicted of the possession of narcotic substance above commercial quantity on two occasions and in spite of commutation he has been convicted for the second time. It also argued that Section 50 of the Act doesn’t apply as the seizure was under the terms of Section 43 of the Act.

The Court upheld the contentions of the prosecution and held that the possession of the 3.5 kgs and 50 kgs of heroin by appellants had been proven beyond doubt. The Court followed the Bachan Singh case and made a balance sheet of aggravating and mitigating circumstances to see if it had any alternative other than imposing the death penalty on the first appellant.

The Court held that Section 31 A of the NDPS Act provided for the death penalty in certain cases and the imposition of it may or may not deter others from committing similar crimes in the future. It modified the sentence imposed on the first appellant with the alternative sentence of rigorous punishment for 30 years and to pay a fine of Rs 3 lakh rupees in default to suffer rigorous imprisonment for three years more. The sentence imposed on the second appellant was upheld. The death sentence was discharged and the sentence appeal was allowed with the aforesaid modification.[State of West Bengal v. Ansar Rahman, 2019 SCC OnLine Cal 5189, decided on 26-11-2019]

Hot Off The PressNews

As reported by media, A Three-Judge Bench of the Lahore High Court has pronounced the death penalty for General Pervez Musharraf in a high treason case.

Death Sentence to a former army chief is happening for the first time in the history of Pakistan.

Musharraf had been facing a high treason trial for clamping the state of emergency on November 3, 2007. The case had been pending since December 2013.

He has been living in Dubai since March 2016 for “medical treatment”.


Image Credits: Hindustan Times

Case BriefsForeign Courts

Malaysia Court of Appeal: A Full Bench of Kamardin Hashim, Hanipah Farikullah, Mohamad Zabidin Mohd Diah, JCA dismissed the appeal filed by a person who was convicted for drug trafficking and affirmed the conviction and sentence of the death penalty by High Court.

The appellant was a Thai national female who was found in the possession of drugs and she was trying to hide it by sitting on it. When cops did the body check of appellant then drugs were found. She was charged under Section 39B(1)(a) of the Dangerous Drugs Act, 1952. The learned trial judge invoked the statutory presumption under Section 37(da)(ix) of the Act based on the weight of the drugs which was more than 40 grams of Cocaine, and sentenced her to death penalty. The said order was challenged in this appeal.

The appellant argued that drugs could have been left by the previous guest and also there are chances that police may fabricate evidence against her but there was no reason for police to do that. She also emphasized that her luggage was scanned at the airport and nothing incriminating was found. But the argument was made that there is a possibility she got possession of drugs after she left airport. 

The respondent argued that they got information about drugs so they checked the room acting on that information they checked the room and drugs were found in that room. Drugs found were sent for check which confirmed the presence of cocaine in those things which further affirms the allegation on the appellant. Moreover, there will be no reason to defame a person who had just arrived in a country. 

The Court opined that High Court had analysed all the witness and was satisfied there was no break in chain of evidence to the drugs produced and identified by prosecution witness in court. The High Court Judge had relied on the conduct of appellant in concealing the drugs by sitting on them, which established that she had knowledge about it.

Giving due regard to appreciation of evidence by the High Court and circumstances of this case, the Court held the appellant guilty for trafficking charges without any reasonable doubt. The court also remarked that it is illogical for the person to leave such valuable drugs in the room. It was opined that there was no merit in the appeal and also the arguments made by the appellant. [Napalai Narapattarawong v. Public Prosecutor, 2019 SCC OnLine MYCA 3, decided on 24-09-2019]

Amendments to existing lawsLegislation Updates

After the Parliament approval, President of India, Ram Nath Kovind gave his assent for the Protection of Children from Sexual Offences (Amendment) Act, 2019, today, i.e. 05-08-2019.

Object of the POCSO Act, 2012:

The Protection of Children from Sexual Offences Act, 2012 (the said Act) has been enacted to protect children from offences of sexual assault, sexual harassment, and pornography and provide for the establishment of Special Courts for the trial of such offences and for matters connected therewith or incidental thereto.

Reason for approving the POCSO (Amendment) Act, 2019:

In the recent past incidences of child sexual abuse cases demonstrating the inhumane mind-set of the abusers, who have been barbaric in their approach towards young victims, is rising in the country. Children are becoming easy prey because of their tender age, physical vulnerabilities and inexperience of life and society.

There is a strong need to take stringent measures to deter the rising trend of child sex abuse in the country, the proposed amendments to the said Act make provisions for enhancement of punishments for various offences so as to deter the perpetrators and ensure safety, security and dignified childhood for a child. It also empowers the Central Government to make rules for the manner of deleting or destroying or reporting about pornographic material in any form involving a child to the designated authority.

Major amendments to incorporated and passed by the Parliament are as follows:

Sections Amended

POSCO Act, 2012

POCSO (Amendment) Act, 2019

Section (2)(1) [Addition of new clause] ‘(da) “child pornography” means any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child

Section 2 (b)

The words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860), the Code of Criminal Procedure, 1973 (2 of 1974), the “Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)” and the Information Technology Act, 2000 (21 of 2000) shall have the meanings respectively assigned to them in the said Codes or the Acts. The words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860), the Code of Criminal Procedure, 1973 (2 of 1974), the “Juvenile Justice (Care and Protection of Children) Act, 2015” (56 of 2000) and the Information Technology Act, 2000 (21 of 2000) shall have the meanings respectively assigned to them in the said Codes or the Acts.

Section 4 (1) [Punishment increased]

Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

Section 4 [Insertion of new sub-sections]

“(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine.

 

(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”

Section 5

Section 6 [SUBSTITUTED]

Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. “6. (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

 

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”

Section 9 [Insertion of new clause]

“(v) whoever persuades, induces, entices or coerces a child to get administered or administers or direct anyone to administer, help in getting administered any drug or hormone or any chemical substance, to a child with the intent that such child attains early sexual maturity;”

Section 14 [SUBSTITUTION]

“14. (1) Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine, and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.

 

(2) Whoever using a child or children for pornographic purposes under sub-section (1), commits an offence referred to in Section 3 or Section 5 or Section 7 or Section 9 by directly participating in such pornographic acts, shall be punished for the said offences also under Section 4, Section 6, Section 8 and Section 10, respectively, in addition to the punishment provided in sub-section (1).”

Section 15 [SUBSTITUTED]

“15 (1) Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees, and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees.

(2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.

(3) Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both, and in the event of second or subsequent conviction, with imprisonment of either description which shall not be less than five years which may extend to seven years and shall also be liable to fine.”

Section 34

Section 42

Where an act or omission constitutes an offence punishable under this Act and also under Sections 166-A, 354-A, 354-B, 354-C, 354-D, 370, 370-A, 375, 376, 4[376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB], “376-E or Section 509 of the Indian Penal Code” (45 of 1860), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. Where an act or omission constitutes an offence punishable under this Act and also under Sections 166-A, 354-A, 354-B, 354-C, 354-D, 370, 370-A, 375, 376, 4[376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB], “376E, section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 2000” (45 of 1860), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.

Section 45 [Re-lettered] sub-section (2) (a);

Addition of new clauses

“(a) the manner of deleting or destroying or reporting about pornographic material in any form involving a child to the designated authority under sub-section (1) of Section 15;

(aa) the manner of reporting about pornographic material in any form involving a child under sub-section (2) of Section 15;”.


Ministry of Law and Justice

[Notification dt. 06-08-2019]

Legislation UpdatesStatutes/Bills/Ordinances

Rajya Sabha passed the Protection of Children from Sexual Offences (Amendment) Bill, 2019, yesterday, i.e. 24-07-2019 with a death penalty provision for committing sexual crimes against children.

As reported by All India Radio, “Bill provides that those who use a child for pornographic purposes should be punished with imprisonment up to five years and a fine. However, in the event of second or subsequent conviction, the punishment would be up to seven years and fine.

The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including photographs, video, digital or computer-generated image indistinguishable from an actual child.

According to the amendment bill, those committing penetrative sexual assaults on a child below 16 years of age would be punished with imprisonment up to 20 years, which might extend to life imprisonment as well as fine.

In case of aggravated penetrative sexual assault, the bill increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.”


[Source: All India Radio]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench of J.K. Maheshwari and Anjuli Palo, JJ. partly allowed a criminal petition filed by a person accused of rape and murder of his minor daughter, and commuted his death penalty to life imprisonment.

In the instant case, the prosecutrix (since deceased) aged six years was the younger daughter of the appellant. She was residing with her mother and the appellant. The appellant was annoyed and having suspicion on his wife, Farida of questionable character. As he wanted to take revenge, he allured the prosecutrix with chocolates and used to commit unnatural intercourse and rape with his minor daughter. After committing the rape with the prosecutrix, he murdered her, hanged her from the ceiling with the help of a dupatta and then fled away from the spot. Police registered a case under Section 174 of the Code of Criminal Procedure, 1973. The DNA test report revealed that the DNA profile of appellant matched with the DNA profile present in the vaginal swab of the prosecutrix and sperms were also present in the vaginal swab. Due to the aforesaid evidence, police filed charge-sheet against the appellant under Sections 376, 377, 302 and 201 of the Penal Code, 1860 and Section 5(m) read with Section 6 of the Protection of Children from the Sexual Offences Act, 2012. Trial Court convicted the appellant and awarded him a death sentence. The matter was referred to this Court for confirmation of the death sentence under Section 366 (1) of CrPC. The appellant had challenged the findings recorded by the trial court by filing the separate appeal under Section 374 (2) of CrPC.

The learned counsel for the appellant, Surendra Singh and Siddharth Sharma argued that the dupatta which was used by the deceased for hanging herself was not examined at the time of postmortem. It was further contended that conviction could not be based only on the DNA and Forensic Science Laboratory (FSL) reports. Hence, the impugned judgment was liable to be set aside and the appellant was entitled to be acquitted from the charges leveled against him.

The learned counsel for the respondent/State, Som Mishra contended that the Trial Court had properly evaluated the evidence available on record and rightly convicted the appellant and awarded sentence befitting the crime. Hence, the appeal filed by the appellant was liable to be dismissed and allowing the criminal reference, the death sentence may be confirmed.

The Court stated that in the rarest of the rare cases, death sentence ought to be awarded. For this, the Court relied on the judgment of Supreme Court in the case of Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67, in which the Supreme Court had opined that the death sentence must be awarded where the victims were innocent children and helpless women, especially when the crime was committed in the cruelest and inhumane manner which was extremely brutal, grotesque, diabolical and revolting.

The Court drew a balance sheet of aggravating and mitigating circumstances to determine if the death penalty was adequate punishment. Aggravating circumstances: (i) extremely brutal, diabolic and cruel act; (ii) victim being six years was a minor and helpless; (iii) no provocation because the accused was in a dominating position; (iv) injuries were grievous with respect to sexual assault particularly in a case where the victim was the daughter of the appellant. Mitigating circumstances: (i) it was a case of circumstantial evidence; (ii) no evidence that the accused had the propensity of committing further crimes causing continuous threat to the society; (iii) no evidence to show that the accused could not be reformed or rehabilitated; (iv) other punishment options were open; (v) accused was not a professional killer or offender having any criminal antecedent; (vi) accused being a major having family with him, the possibility of reformation could not be ruled out.

Thus, the Court held that in place of the death penalty, the appellant undergoes life imprisonment with a minimum of 30 years of imprisonment (without remission) and fine of Rs 20,000. In default of payment of fine, the appellant had to undergo further rigorous imprisonment for six months. The conviction and sentences awarded under Sections 201, 377, 376 of IPC as awarded by the trial court were held to be just and hence, hereby maintained.

The criminal appeal filed by the appellant was partly allowed.[Afjal Khan v. State of Madhya Pradesh, 2019 SCC OnLine MP 1672, decided on 17-05-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. set aside the impugned judgment and conviction of the appellant by extending the benefit of doubt.

The prosecution’s case was hinged on the dying declaration made by the deceased Haji Muhammed Zamin Khan (complainant), in which he said that he was on his way back from a condolence meeting when the respondent herein fired upon him. After making this statement to the police, he succumbed to his wounds. The accused was arrested, convicted under Section 302 of Pakistan Penal Code, 1860 and sentenced to death. Peshawar High Court however altered the death penalty into imprisonment for life. Aggrieved by the said order, the present appeal was filed by complainant’s son.

The learned counsel for the appellant, Astagfirullah, contended that in the absence of any mitigating circumstance, there was no occasion for the learned High Court to alter the death penalty into imprisonment for life. Whereas learned counsel for the accused-respondent, Ghulam Mohyuddin Malik, questioned the legality of conviction on the ground that the case was founded primarily on a dying declaration and the prosecution miserably failed to show as to who recorded deceased’s last words and thus it was unsafe to maintain the conviction.

The Court noted that the statement of the deceased was recorded by Munawar Khan, one of the prosecution witnesses, who dictated it to Khan Ghalib Khan (another prosecution witness) to be recorded in the first information report. However, the second prosecution witness denied recording the first information report and thus it was unknown as to who had recorded the deceased’s last words.

It was observed that dying declaration is an exception to the general rule of direct evidence and it is admitted to the detriment of an accused without the opportunity of cross-examination upon the declarant under the belief that a person, face to face with God, would tell nothing but the whole truth. Therefore, it was held that prosecution must demonstrate beyond the shadow of a doubt that the dying declaration comprised of the words of declarant alone without extraneous prompting or additions. Thus, the person who recorded the dying declaration is the most important witness to verify its veracity. However, this person was missing in the present case.

In view of the above, the Court held that it was grievously unsafe to maintain the conviction and hence by extending the benefit of the doubt to the appellant, the appeal was dismissed and respondent was directed to be released.[Somaid v. Ali Gohar, 2019 SCC OnLine Pak SC 9, decided on 30-04-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of B.P. Dharmadhikari and Prakash D. Naik, JJ. allowed an appeal by a convict who was convicted for murder and voluntary throwing acid by a trial court under Sections 302 and 326-B of Penal Code, 1860 (herein ‘IPC’), and commuted his death sentence holding that the possibility of reformation, rehabilitation and social reintegration of young age convicts into society could not be neglected.

The victim was selected as Nursing Officer in Military Nursing Services and was supposed to join Naval office at Colaba, Mumbai. The accused-appellant, who had proposed to the victim, was rebuffed by her; and thus he threw sulphuric acid on her at Bandra railway station and fled from there. The victim succumbed to her injuries. A Special Women’s Court convicted the appellant for the offence of murder and sentenced him to death.  Appellant was also convicted for the offence of voluntary throwing acid and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs 5,000, in default to suffer rigorous imprisonment for six months. This was the first such case where an accused convicted for the acid attack was given the death penalty. Accused-appellant filed an appeal against this order.

The counsels for the appellant, Trideep Pais, Vijay Hiremath, Anshu Raj Singh and Sanya Kumar, argued that the evidence of eyewitnesses was not consistent with each other. The counsels also asserted that the incident occurred in few seconds as stated by the witnesses who saw the appellant momentarily raising doubt about their ability to identify as the identification test was conducted after eight months from the date of the alleged incident. The prosecution claimed that CCTV footage was collected but the same was not relied upon or exhibited on the ground that footage was not clear. However, nothing was put on record to prove that CCTV footage was unclear. CCTV footage was not sent to Forensic Science laboratory (herein ‘FSL’) nor played in the Court. He also argued that the alibi of the appellant was not considered. The benefit of doubt ought to have been given to the appellant as no evidence was established to show the presence of the appellant on the train boarded by the victim. Moreover, assuming that charges of murder were proved, the trial court should not have awarded the capital punishment as the case cannot be termed as rarest of rare case. Therefore, he asserted that sentencing exercise undertaken by the trial court was improper and against the mandate. Further arguing against the death sentence, it was contended that the appellant had no intention of murdering victim but only wanted to injure her.

Learned Special Public Prosecutor A.M. Chimalkar, with Siddharth Jagushte and Tusshar Nirbhavne submitted that the prosecution had established the charges under Sections 302 and 326-B of IPC beyond all reasonable doubt. There was sufficient evidence to prove the guilt of the appellant. The trial court had analyzed the evidence in detail and had given findings of involvement of the appellant in the crime. The eyewitnesses gave an ocular account of the incident and there was no doubt to discard their evidence. The appellant was identified by the witnesses. Furthermore, he argued that the medical evidence supported the case of the prosecution. Learned Special Public Prosecutor submitted that the trial court was right to award death penalty. According to him, the evidence adduced indicate aggravating circumstances justifying no other punishment except the death penalty. The crime was brutal. The trial court examined the reasons for awarding death to the appellant and gave strong reasons for convicting the appellant and interference in the decision was not warranted.

The Court observed that prosecution had established its case beyond reasonable doubt and there was nothing to doubt the authenticity of the evidence and the witnesses examined. Reliance was laid upon S.K. Hasan v. State of Maharashtra, 2003 SCC OnLine Bom 1167 to state that when the appellant had taken a specific plea of alibi, the burden was on him to establish the same. The appellant had not led any evidence to substantiate his plea of alibi. So in the absence of establishing the plea of alibi for cogent evidence, a necessary consequence of adverse inference had to be drawn. The documentary evidence adduced by the prosecution formed a significant part of the case and proved his involvement in the crime.

However, it was opined that the age of the appellant was 23 years at the time of the commission of a crime and that there was a possibility to reform. The Court took note of the ruling in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 to hold that a death sentence can be awarded only in the rarest of rare cases, only if an alternative option was unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death was irrevocable and irretrievable upon execution. The Court remarked, “It should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is concerned.” It took into consideration the material on record including overall personality, subsequent events to commute the sentence of death awarded to the appellant and directed that he should not be released from custody for rest of his normal life. Furthermore, the Court held that trial court relied on collective conscience to hold that the appellant deserved death penalty but ignored the fact that the appellant was of young age at the time of commission of offence and there was nothing to indicate that the appellant was beyond reformation and rehabilitation, as mandated in the case of Bachan Singh. Although the conviction of the appellant was confirmed, the death sentence was commuted to imprisonment for life. Hence, the appeal was partly allowed.[State of Maharashtra v. Ankur Narayanlal Panwar, 2019 SCC OnLine Bom 968, decided on 12-06-2019]

Hot Off The PressNews

According to the media reports, New Hampshire in a recent development abolishes capital punishment in the State.

“New Hampshire, which hasn’t executed anyone in 80 years and has only one inmate on death row, has become the latest US state to abolish the death penalty when the state Senate voted to override the governor’s veto.”

The Senate vote came a week after the 400-member House voted by the narrowest possible margin to override Republican Governor Chris Sununu’s veto of a bill to repeal capital punishment.

There has been no execution since 1939, and the repeal bill would not apply retroactively to the state’s only inmate on death row.


[Source: The Guardian]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.M. Shaffique and P. Somarajan, JJ. was hearing a death reference tagged along with a criminal appeal filed by the accused challenging order of the Sessions Judge vide which he was convicted and sentenced to be hanged by the neck till his death for offences under Sections 376, 302, 449 and 392 of the Indian Penal Code, 1860.

The accused respondent trespassed into the house of a minor girl aged 15 years, raped and murdered her; and thereafter committed theft of a gold necklace and a gold ring from her body. The Court observed that there was no eye-witness to the incident and the case rested purely on circumstantial evidence. However, scientific material showed that the DNA found in spermatozoa taken from victim’s vagina matched with the DNA profile of the accused. This clearly proved that the accused had raped the victim. Further, the missing chain and ring were recovered from a financier where the accused had pledged the same under a different name. Thus, the prosecution had proved all circumstances forming the chain beyond a reasonable doubt and the only hypothesis that could be arrived at by the Court was that the accused was involved in the crime.

It was noted that this was a case where the victim was subjected to forcible sexual intercourse, and lust and greed of the accused had resulted in rape and murder of a minor girl. However, the accused did not have any criminal antecedents; there was no pre-meditation and intention to commit crime would have developed all of a sudden. The offence might have been committed in a sudden rush of blood i.e., to commit robbery and rape. The accused, aged 29 years at the time of the incident, had married twice and had children.

In view of all the facts, it was opined that instead of the death penalty, the punishment of life imprisonment would meet the ends of justice. However, taking into account gravity of the offence, the Court relied on the dictum in Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 and held that no remission be granted to the accused for a period of 25 years. [State v. Rajesh Kumar, 2019 SCC OnLine Ker 43, Order dated 08-01-2019]

Case BriefsForeign Courts

Supreme Court of Zambia: This appeal was filed before a 3-Judge Bench comprising of Hamaundu, Kajimanga and Chinyama, JJS., where trial court had imposed the death penalty on the appellant for aggravated robbery under Section 294 (2) of the Penal Code.

Appellant was convicted and sentences for death penalty for the commission of robbery having offensive and dangerous weapons. The Trial Court had referred to a case of Simon Mudenda v. People, (1980) ZMSC 26 in which it was held that in case of aggravated robbery that is, where firearms or other offensive weapons are involved, it was mandatory to give death penalty and Court cannot consider any extenuating circumstances or pass any other order. Therefore, Trial Court gave him death penalty under Section 294(2) of the Penal Code. Appellant contended that he did not have any firearm with him and prosecution did not establish the presence of firearm with appellant.

Supreme Court on perusing all the witnesses found that one eye witness had seen appellant’s accomplice armed with a firearm and this fact was not contested. Two other eye witnesses had seen a plank kind of thing to have fallen from the appellant’s bag which later was found in the ballistic report to be the part of the firearm recovered from appellant. Thus, Trial Court had correctly convicted and sentenced appellant. Therefore, this appeal was dismissed. [Anania Tembo v. People, 2018 SCC OnLine ZMSC 3, dated 10-12-2018]

Case BriefsSupreme Court

“Society’s perspective is generally formed by the emotionally charged narratives, which need not necessarily be legally correct, properly informed or procedurally proper.”

Supreme Court: The Bench comprising of Kurian Joseph, Deepak Gupta and Hemant Gupta, JJ. partly allowed the appeals while modifying the death sentence to life imprisonment.

The present appeals in the case were filed against the order of the Chhattisgarh High Court which had confirmed the death sentence awarded by the Sessions Judge.

Factual matrix of the case draws a picture of the actual scenarios and events that happened and leads to the capital punishment to the appellant. In accordance with the facts of the case, appellant had entered the house of Anandram Sahu, Firanteen Bai, and Ratna Sahu and caused fatal injuries with a knife. Later, appellant entered the house of Durga Banchhor with a blood-stained knife while assaulting Meera Banchhor and inflicted grievous injuries.

For the above stated set of actions by the appellant, Sessions Court had convicted him for murder under Section 302 IPC, Section 307 IPC i.e. attempt to murder, Section 506(2) IPC for threatening to kill and house trespass under Section 450 IPC. For all the stated offences he was awarded death sentence in view of the case falling in the arena of “rarest of the rare” category. Further, High Court also confirmed the conviction, while stating that “aggravating circumstances in the present case outweighed the mitigating circumstances.”

The learned senior counsel for the appellant prayed that the death sentence imposed be commuted to imprisonment for life by putting forward his submissions.

The Supreme Court while laying down its decision stated that,

“High Court erroneously confirmed death penalty without correctly applying the law laid down in Bachan Singh v. State of Punjab, (1980) 2 SCC 684; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.”

Further, it stated that the highest punishment of death sentence in the present case does not fulfill the test of “rarest of rare case” where the alternative option is unquestionably foreclosed. Therefore, the Court held that the imposition of the death sentence was not the only option and hence the same needs to be modified to life imprisonment.“Till the time death penalty exists in the statute books, the burden to be satisfied by the judge in awarding this punishment must be high.” Appeals were partly allowed, commuting death sentence to life imprisonment.

Justice Kurian Joseph while delivering the judgment on behalf of the Court stated, “Having regard to the 262nd Report of the Law Commission that the constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being ‘arbitrarily and freakishly imposed’ and that capital punishment has failed to achieve any constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice. ”

He further observed, “It is also a matter of anguishing concern as to how public discourse on crimes have an impact on the trial, conviction and sentence in a case. The Court’s duty to be constitutionally correct even when its view is counter-majoritarian is also a factor which should weigh with the Court when it deals with the collective conscience of the people or public opinion.”

Interestingly, Deepak Gupta and Hemant Gupta, JJ. gave a supplementing opinion in which they agreed with Justice Kurian Joseph on all points except the observation in regard to the death penalty quoted above.[Channu Lal Verma v. State of Chhattisgarh,2018 SCC OnLine SC 2570, decided on 28-11-2018]

 

Case BriefsHigh Courts

Patna High Court: A Division Bench of Arvind Srivastava and Rakesh Kumar, JJ., upheld the judgment of the trial court and dismissed the appeal, but modified the death sentence of the appellant to a sentence of life imprisonment.

In the present case, the accused-appellant was charged with committing offences under Section 302 and Section 376 of the Indian Penal Code, and was also charged under Section 6 of the POCSO Act, for raping and murdering a six-year-old girl. The prosecution had provided a number of witnesses, including testimonial evidence from the informant, his wife, the investigating officer of the case, the medical officer etc., to substantiate the charges. The prosecution had also presented evidence which consisted of the blood-stained clothes of the appellant as well as the victim, the medical report containing the details of the injuries on the body and the possible cause of death.

Even though the appellant had denied all charges under which he was being tried, the defence did not present any evidence or bring any witnesses to repudiate the said charges. The claim by the defence that reliable witnesses had not been relied upon, the evidence presented had been compromised and that the presented witnesses were interested witnesses was rejected by the Court.

The Court decreed that in cases pertaining to rape and sexual assault, it was extremely unlikely that there would be any eye-witnesses. In light of the same, the Court held that the prosecution had conclusively proved beyond a reasonable doubt that the appellant had committed the offence of rape and then murdered the victim.

The High Court then reviewed the death sentence which was given by the trial court. The Court held that death sentence should be reserved for the rarest of rare cases, and since the appellant was a young man who had not committed any offence prior to the present case, the Court reduced the sentence of the appellant to that of life imprisonment, stating that it would serve the purpose which the offence committed by the appellant merited. [State of Bihar v. Hari Kishun Sada,2018 SCC OnLine Pat 1988, Order dated 02-11-2018].

Legislation UpdatesStatutes/Bills/Ordinances

Lok Sabha passed a bill seeking to replace Criminal Law (Amendment) Ordinance by placing a significant provision of death penalty to the convicts of rape of girls below the age of 12 years.

Minister of State for Home Kiren Rijiju stated that “Indian Penal Code provided for punishment to those convicted of raping a woman, but there was no provision for rape or gangrape of minor girls below 16 or 12 years of age. These are “very important provisions” which the government has proposed.

The bill stipulates stringent punishment for perpetrators of rape, particularly of girls below 12 years. Death sentence has been provided for rapists of girls less than 12 years. The minimum punishment in cases of rape of women has been increased from rigorous imprisonment of seven years to 10 years, extendable to life imprisonment.

This Bill would be a climacteric weapon in order to eradicate the menace of society.

[Source: PTI]