Do not prescribe death penalty with an eye only on the abhorrence of the crime, equally consider factors that can help the prisoner keep his life, the Supreme Court told judges across the country in a verdict on Wednesday.
In a judgment which may become a significant precedent to the anti-death penalty cause, the apex court said trial judges should not be swayed in favour of death penalty merely because of the dreadful nature of the crime and its harmful impact on the society. They should equally consider the mitigating factors in favour of life imprisonment.
The judgment by a 3-judge Bench led by Justice A.M. Khanwilkar came in the rape and murder of a seven-year-old. The court commuted the death penalty of the convict to life imprisonment.
‘Preservation of human life’
Justice Dinesh Maheshwari, who authored the judgment, referred to the evolution of the principles of penology. Justice Maheshwari said penology had grown to accommodate the philosophy of "preservation of human life".
Justice Maheshwari noted that though capital punishment serves as a deterrent and a "response to the society’s call for appropriate punishment in appropriate cases", the principles of penology have "evolved to balance the other obligations of the society, i.e., of preserving the human life, be it of accused, unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society".
Today, judiciary has other options to death penalty, the court noted.
These could include life imprisonment without remission or premature release, particularly while dealing with heinous crimes. These are midway approaches devised through the delicate balancing of the judicial process in cases involving heinous crimes.
‘Intense remarks’
In the current case, the apex court noted that both the lower courts made "intense remarks" about the abhorrence of the crime but did not carefully consider the mitigating factors in favour of the accused before sentencing him to death.
Justice Maheshwari said the courts should have given "due consideration to the equally relevant aspect pertaining to mitigating factors before arriving at a conclusion that option of any other punishment than the capital one was foreclosed".
Justice Maheshwari said had the courts looked, they would have found hope for the convict's reformation in the mitigating circumstances of the convict, who was no hardened criminal, had an unblemished jail conduct, a young family and an aged father.
"It would be unsafe to treat this case as falling in ‘rarest of rare’ category," Justice Maheshwari noted.
Source: The Hindu, Staff, February 10, 2022
Abhorrent Nature of Crime Alone Cannot Be Decisive Factor to Award Death Sentence: SC
The Supreme Court on Wednesday said the abhorrent nature of the crime alone cannot be the decisive factor for awarding the death sentence, asking judges to also consider the mitigating factors in favour of life imprisonment.
Delivering a judgment that may set a significant precedent, the top court commuted the death sentence awarded to a man for raping and murdering a 7-year-old girl to life imprisonment. “It cannot be said that there is no probability of the convict being reformed and rehabilitated,” the bench of Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar said.
According to The Hindu, Justice Maheshwari, who authored the judgment, referred to the “evolution of the principles of penology”, which had grown to accommodate the philosophy of “preservation of human life”.
The judge said though capital punishment serves as a deterrent and is sometimes handed out as a “response to the society’s call for appropriate punishment in appropriate cases”, the principles of penology have “evolved to balance the other obligations of the society, i.e., of preserving the human life” unless “termination thereof is inevitable and is to serve the other societal causes and collective conscience of society”, according to The Hindu.
The verdict says there exist other options, such as life imprisonment without remission or premature release.
The apex court, while upholding the man’s conviction for the offences including that of murder and rape under the Indian Penal Code and the provisions of the Protection of Children from Sexual Offences (POCSO) Act, said the convict shall not be entitled to premature release or remission before undergoing actual imprisonment for 30 years.
The bench delivered its verdict on the appeal against the October 2017 judgment of the Allahabad high court which had confirmed the death sentence awarded to the convict by the trial court.
The trial court had in December 2016 convicted the man for several offences and sentenced him to death for the offence under section 302 (murder) of the IPC.
The appellant was about 33-34 old at the time of the commission of the crime in 2015. Looking at the overall facts and circumstances, the Supreme Court said it would be “just and proper to award the punishment of imprisonment for life to the appellant for the offence under section 302 IPC while providing for actual imprisonment for a minimum period of 30 years”.
In its 98-page judgment, the bench noted that the appellant was accused of enticing a seven-year-old girl to accompany him on the pretext of picking fruits and thereafter raped her. The appellant had murdered her and dumped the body near a bridge on a riverbank.
The bench said both the trial court as also the high court had taken the abhorrent nature of the crime alone to be the decisive factor for awarding death sentence in the case.
“In other words, the impugned orders awarding and confirming death sentence could only be said to be of assumptive conclusions, where it has been assumed that death sentence has to be awarded because of the ghastly crime and its abhorrent nature,” it said.
The apex court said the heinous nature of the crime, like that in this case, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience.
It said at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family as well as unblemished jail conduct.
“When all these factors are added together and it is also visualised that there is nothing on record to rule out the probability of reformation and rehabilitation of the appellant, in our view, it would be unsafe to treat this case as falling in ‘rarest of rare’ category,” it said.
“Putting it differently, when the appellant is not shown to be a person having criminal antecedents and is not a hardened criminal, it cannot be said that there is no probability of him being reformed and rehabilitated,” the bench said.
It said even when the case is taken to be not falling in the category of ‘rarest of rare’, the impact of the offences committed on the conscience of the society as a whole cannot be ignored.
While observing that the appellant was rightly convicted by the trial court and his conviction was rightly maintained by the high court, the bench said the sentence awarded, being of termination of natural life, requires closer scrutiny concerning the statutory requirements of section 354(3) of the CrPC as also the principles enunciated by the apex court.
Referring to an earlier judgment delivered by the apex court on an appeal against conviction and death sentence awarded for rape and murder of a two-and-a-half-year-old girl, the bench noted that in that matter, a table of 67 cases decided by the Supreme Court over the past 40 years was perused.
The bench noted it was observed that when the offences were of sections 376 (rape) and 302 (murder) of the IPC and the age of the victim was under 16 years, capital punishment was confirmed in 15, but in three, it was later on commuted to life in review.
“It could readily be seen that while this court has found it justified to have capital punishment on the statute to serve as a deterrent as also in due response to the society’s call for appropriate punishment in appropriate cases but at the same time, the principles of penology have evolved to balance the other obligations of the society, i.e., of preserving the human life, be it of accused unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society,” it said.
Dealing with the case, the bench observed it is proved beyond doubt that the hapless child met with her gruesome end after having been treated inhumanely and having been subjected to sexual assault.
It noted that the victim was last seen in the company of the appellant and he has failed to satisfactorily explain his whereabouts and his knowledge of the location of the dead body.
The death sentence awarded to the appellant for the offence under section 302 IPC is commuted into that of imprisonment for life, with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 (thirty) years, the bench said, while partly allowing the appeal filed by the convict.
Source: thewire.in, Staff, February 10, 2022
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde