Critical Appraisal of Judgements passed by Supreme Court of India in 2012 awarding death sentence

I.  INTRODUCTION

“AN EYE FOR AN EYE MAKES THE WHOLE WORLD BLIND.” Mahatma Gandhi said so, but what if the person taking out the eye of the person does not retribute to the previous act he committed, what if he is continuing to spread the havoc he is being committing and has been causing the terror? Capital punishment or the death penalty comes into picture and it is awarded to such people who commits such acts and are non-reformative and the rarest of rare phenomena evolved.

Capital punishment is the most extreme form of punishment awarded to a convict, it is based on the deterrent theory of punishment, which is based on the principle of threat to deter people from offending.

Initially there were Nine Sections in Indian Penal Code which provided for the Capital Punishment, but after Mithu v. State of Punjab[1], Section 303 of I.P.C. was held Unconstitutional and now only Eight Sections in I.P.C. provides for capital punishment to be provided to the guilty person.

II.  THEORIES OF PUNISHMENT

Administration of justice, which includes administration of criminal justice, is a necessary ingredient of any civilized government. The question, what is end of criminal justice leads one to the question, what is the purpose of punishment. A number of theories have been propounded to answer the question out of which the following five have been given more prominence:

a. Retributive Theory:

This theory is based on retribution, a ‘get even’ concept.  An eye for an eye and a tooth for a tooth is the motto of this theory. The offender must be made to suffer in proportion to the injury he has caused to the victim is the principle behind this theory. The instinct of revenge gets an upper hand; retaliation becomes overbearing. The theory proceeds on ethical grounds, moral culpability of the culprit is the focal point of attention. This theory was nurtured more prominently in the old days when the injured person was given a right to take revenge on the person causing the injury.

b. Expiatory Theory:

The expiatory theory is considered to have a link with the retributive theory and some even hold the opinion that it is a part of the retributive theory. This theory propounds that the punishment should be in order to adjust the suffering to the sin. The offender by suffering pays the debt demanded by justice and owed to authority inflicting the suffering and so becomes reconciled once more with that authority. The punishment should be in proportion to the quantum of wrong and after the wrongdoer undergoes the punishment, it is presumed that he gets purified and thus he once again becomes an accepted member of the society.

c. Deterrent Theory:

The deterrent theory of punishment gives prominence to the notion of deterrence in the mind of the criminal as well as in others. The offender knows that if he violates the law he would be visited with penalty and this fear in him causes him to behave as a normal human being. Similarly by punishing the criminal, a deterrent effect is created in the mind of others that if they ever thought of violating the law, they too would be visited with penalty and this fear in them keeps them away from breaking the law. In other words, the notion of fear is the basis of this theory by which civilized behavior by all is expected to be ensured.

d. Preventive Theory:

Preventive theory envisages the imposition of penalty with a view to prevent or disable the offender from committing the offence again. Repetition of the crime is thus prevented by disabling the criminal. Prevention of a wrongful conduct is ensured. It follows the well known principle ‘ prevention is better than cure.’

e. Reformative Theory:

The reformative theory, a comparatively recent concept gives emphasis on the reformation of the criminal. It treats criminals as primarily sick people needing corrective measures with a view to restore them to the society as good citizens. It believes in causes of crime to be explored more vigorously in a personalized manner and then a personalized treatment is recommended. The growing emphasis on probation, parole and suspended sentences by the modern penology is an indication of the acceptance of this theory in the present day.

III.  CAPITAL PUNISHMENT IN INDIA

The debate on capital punishment has been running over the past so many decades, but yet nothing concrete is coming up. Many may be satisfied with the present legislation on giving of capital punishment but to many of us it’s still not serving the purpose that it is deemed to serve. Is it actually working as a deterrent to crime? Which as far as our understanding goes is increasing day by day. History is evidence to the fact that capital punishment has never acted and would never act as deterrence to crime.

Would it be right to say that capital punishment is more like another divide between the rich and the poor? Till date the capital punishments have only acted as deterrence for those families who could hardly earn bread and butter forget about hiring a smart lawyer who could effectively play with the facts of the case to serve his clients. Only few months back a man named Dhananajay was given capital punishment for raping and then killing a minor girl. His act as such was brutal calling for severe action against him, but it seems that the ends of justice have not actually been met out. So many cases of murder go  unnoticed but without any punishment to the doer only because he has money to meet out whatever expenditure might come in defending his case, be it by influencing or so to say compensating the families of those killed or hiring an efficient lawyer to prove the case in their favor. Talk about so many politicians engrossed from top to bottom in so many corrupt activities known to everyone still go out of the Court smiling. 

The rarest of the rare principal embodied by the S.C. of India in the case of Bachan Singh vs. State of Punjab[2] in giving of capital punishment seems to have been applied only when the defendant is an unprivileged person coming from that strata of the society where people do anything to earn bread and illiteracy has only caused misery. Not that the Court wants to do injustice to these persons but the fact that they are not capable of fighting their case because they cannot hire a lawyer who has master minded the provisions of Article 21 of the Constitution of India to save his client. Nor has he the money to change the evidences against him as has happened recently in so many cases before us where we knew the culprit, here even the Judge is himself so sure of the culprit but yet the culprit goes off scot-free because of lack of evidences against him.

IV. JUDGMENTS PASSED BY SUPREME COURT OF INDIA IN 2012 AWARDING DEATH SENTENCE

I have dealt with three judgments passed by Supreme Court of India in 2012

• Ramnaresh v. State of Chattisgarh, (2012) 4SCC257

• Rajender Prahladrao Wasnik v. State of Maharashtra, (2012) 4SCC37

• Sonu Sardar v. State of Chattisgarh, (2012) 4SCC97

Out of these 3 judgments as mentioned in the previous slide 3 are such where in Death Sentence was awarded and in One the Death Sentence was reduced to Life Imprisonment.

In Ramnaresh v. State of Chattisgarh the appellant’s Death sentence was reduced to life imprisonment and general principles for award of death sentence were restated and clarified.

· Ramnaresh v. State of Chattisgarh, (2012) 4SCC257

Brief Facts of the Case:

This Particular Case Pertains to the commission of rape and murder of deceased Rajkumari who was gang-raped and murdered by the appellant and 3 other accused persons and later on murdered the deceased.

The deceased was a mother of two and was living with her husband in Village Gullidand and her husband had gone to house of his father at Rajnagar leaving behind a servant to sleep at the house and for protection.

One of the accused was the brother in law of the deceased and he along with Appellant and other co accused entered deceased house and after threathning the servant of death went inside deceased room and raped her in turns and asked the servant to go to deceased’s mother house to tell her about her and when she came to the house the deceased was found dead, after that the husband of the deceased was informed and he lodged an FIR after which the accused were arrested and after thorough investigation evidence was collected and the Sessions Court found them guilty and awarded death sentence to the appellant and other co accused and the on Appeal the Division Bench of High Court also confirmed the death sentence and thus the Appeal was filed in Supreme Court.

ISSUES INVOLVED

(1) That the prosecution has failed to prove its case beyond any reasonable doubt.

(2) That the sole witness, PW6, Dhaniram is not a credible witness and, in fact, he himself falls within the realm of suspicion as being an accused. Number of other witnesses including, PW2, Sunita, PW5, Bela Bai, and PW10, Kamlesh, turned hostile in the court. This clearly is indicative of false implication of the accused.

(3) That there are variations and serious contradictions in the statements of the witnesses, which have been relied upon by the courts, while convicting the accused.

(4) Furthermore, there is an inordinate and unexplained delay in lodging the FIR. Therefore, the conviction of the accused is unsustainable. The contention is that the linking evidence is missing in the present case. The incriminating evidence produced by the prosecution does not connect the Appellants with the commission of crime.

(5) The High Court has erred in law in relying upon the statement of the witnesses which are not reliable. The courts are expected to examine statements of such witnesses and/or sole witness cautiously. The learned Trial Court as well as the High Court has failed to apply these settled principles correctly to the facts of the present case.

(6) FSL report does not clearly state or link the Appellants with the commission of the crime.

The Supreme Court while deciding the appeal talked about the mitigating circumstances and aggravating circumstances which the Court has to balance while awarding death sentence and the principle which was laid down in Bacchan Singh Case and Macchi Singh Case

To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court. The Aggravating Circumstances, mitigating circumstances and the principles which the Court has to follow has been discussed below:

AGGRAVATING CIRCUMSTANCES

(1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.

(2) The offence was committed while the offender was engaged in the commission of another serious offence.

(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.

(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.

(5) Hired killings.

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.

(7) The offence was committed by a person while in lawful custody.

(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Code of Criminal Procedure.

(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.

(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

(11) When murder is committed for a motive which evidences total depravity and meanness.

(12) When there is a cold blooded murder without provocation.

(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating Circumstances:

(1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.

(2) The age of the accused is a relevant consideration but not a determinative factor by itself.

(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

(6) Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

(7) Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused.

Principles:

(1) The Court has to apply the test to determine, if it was the 'rarest of rare' case for imposition of a death sentence.

(2) In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice.

(3) Life imprisonment is the rule and death sentence is an exception.

(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations.

(5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.

JUDGMENT 

Merely because a crime was heinous per se might not be a sufficient reason for imposition of death penalty without reference to other factors and attendant circumstances. Life of a particular individual could not be taken away except according to procedure established by law and that was constitutional mandate. Law contemplated recording of special reasons and, therefore, expression 'special' had to be given a definite meaning and connotation . 'Special reasons' in contra-distinction to 'reasons' simplicitor conveyed legislative mandate of putting a restriction on exercise of judicial discretion by placing requirement of special reasons . Every punishment imposed was bound to have its effect not only on Accused alone, but also on society as a whole.

Thus, Courts should consider retributive and deterrent aspect of punishment while imposing extreme punishment of death. It was not a case, where Court would inevitably arrive at only one conclusion, and no other, that imposition of death penalty was only punishment that would serve ends of justice. Possibility of death of deceased occurring co-accidentally as a result of rape committed on her by Accused could not be ruled out. Accused were guilty of offences for which they were charged - Possibility of their being reformed could not be ruled out. Court had to consider various parameters and balance mitigating circumstances against need for imposition of capital punishment. Factors to be considered could be different than mitigating circumstances. Age of Accused, possibility of death of deceased occurring accidentally and possibility of accused reforming themselves, they could not be termed as 'social menace.’ All Accused had committed a heinous and inhumane crime for satisfaction of their lust, but it could not be held with certainty that this case fell in 'rarest of rare' cases. It could not be said that any other sentence but death would be inadequate.

· Rajender Prahladrao Wasnik v. State of Maharashtra, (2012) 4SCC37

BRIEF FACTS OF THE CASE

This is a case where in the accused had raped and murdered a minor and had left her body naked in the fields. The accused had visited the deceased’s house in the absence of her father and had asked her mother to take her in pretext of buying biscuits for her but never returned and when the father of deceased arrived he was informed about the same and while going to lodge an FiR he found the deceased’s dead body lying naked. The police investigated the matter and had arrested the appellant and he was medically examined and put to trial. The Sessions Court found him guilty of Murder, Rape and Commission of Unnatural Offence with the deceased and awarded death sentence to the appellant and the same was upheld by the High Court in Appeal. The Appellant filed the appeal henceforth in Supreme Court.

JUDGMENT

Supreme Court while deciding the appeal held that crime committed by Accused was heinous. It was not heinous simplicitor, but was a brutal and inhuman crime. On basis of 'last seen together' theory and other direct and circumstantial evidence, prosecution had been able to establish its case beyond any reasonable doubt. Pain and agony that, Accused must had caused to deceased minor girl was beyond imagination and was limit of viciousness. Minor child was helpless in cruel hands of Accused. Accused, by his conduct, had belied human relationship of trust and worthiness. Accused left deceased in a badly injured condition in open fields without even clothes.  This reflected most unfortunate and abusive facet of human conduct. Thus, trial Court was justified in law and on facts of present case, in awarding extreme penalty of death. There was no justifiable reason to interfere with judgment of conviction.

· SONU SARDAR V. STATE OF CHATTISGARH, (2012) 4SCC97

BRIEF FACTS OF THE CASE

This is a case where in the appellant and his co accused had committed robbery and murder of 5 persons including a woman and two minor children in a very dastardly manner with the use of axe, knife and iron rod and were found guilty and Sessions Court awarded death sentence which was upheld by the High Court and the appeal was filed to set aside the death sentence. The appellant had argued that it is a settled law that the trial court while awarding death sentence have to give proper reasons and Supreme Court after perusal of record held that the Trial Court had given proper reasons and upheld the death sentence.

REASONS GIVEN BY TRIAL COURT:

(i) The crime was pre-meditated.

(ii) The crime has struck fear and terror in the public mind.

(iii) Helpless and defenceless women and two minor children aged eight and four years besides two adult men were murdered.

(iv) Asgar Ali, the driver of Shamim, who had only stopped in the house for his food, was also not spared.

(v) Taking advantage of earlier business relations with Shamim, the Appellant made a friendly entry and committed the murders.

(vi) The intention was to kill all members of the family though surprisingly a six month old baby and a four year old child remained alive.

(vii) The five murders were brutal, grotesque, diabolical, revolting and dastardly, which indicated the criminality of the perpetrators of the crime.

(viii) No physical or financial harm appears to have been caused by the deceased to the accused.

JUDGMENT

Supreme Court held that as against the aggravating circumstances mentioned above the trial court did not find any mitigating circumstance in favour of the Appellant to avoid the death penalty. This is, therefore, not one of those cases in which the trial court has not recorded elaborate reasons for awarding death sentence to the Appellant.

There was, therefore, clear and definite evidence in present case to show that, Appellant not only participated in crime, but also played lead role in offence under Section 396 of IPC and death sentence awarded to appellant was upheld.

V. CRITICAL ANALYSIS OF JUDGMENTS PASSED BY SUPREME COURT IN 2012 AWARDING DEATH SENTENCE.

VI.  CONCLUSION

Thus, the Supreme Court is following the rarest of rare principle as propounded in Bacchan Singh v. State of Punjab and has been very careful while awarding death sentence to the accused and takes into consideration the present scenario and also the principles of human rights which provides Right to Life. The Supreme Court while deciding the granting of capital punishment takes into consideration all the factors and chances of reformation of the accused into account.