death penalty supreme court

Abhorrent Nature of Crime Alone Cannot Be Decisive Factor to Award Death Sentence: SC

Commuting the death sentence awarded to a man convicted of raping and killing a minor, the court asked judges to also consider the mitigating factors in favour of life imprisonment.

New Delhi: 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 seven-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.

Also Read: Seven Reasons Why We Shouldn’t Demand the Death Penalty for Rape

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.

(With PTI inputs)

Nirbhaya Case: Convict Pawan’s Mercy Plea Still With President, Delhi Court Stays Hanging

The hanging of the four convicts was scheduled for Tuesday at 6 am.

New Delhi: A Delhi court Monday deferred till further order the hanging of the four death row convicts in the 2012 Delhi ‘Nirbhaya’ gang rape and murder case.

The hanging of the four convicts was scheduled for Tuesday at 6 am.

Additional Sessions Judge Dharmender Rana said the death sentence cannot be executed pending disposal of mercy petition of convict Pawan Kumar Gupta.

The court passed the order on Pawan’s plea seeking to stay the execution. He had filed a mercy petition before the President on Monday. The Union Home Ministry had forwarded the petition to the President for his consideration and decision. It is still with Kovind.

Pawan’s curative plea was rejected by the Supreme Court earlier in the day.

The execution of their death warrants has now been deferred thrice.

“Despite stiff resistance from the victim’s side, I am of the opinion that any condemned convict must not meet his Creator with a grievance in his bosom that the courts of the country have not acted fairly in granting him an opportunity to exhaust his legal remedies,” the judge said.

“As a cumulative effect of the discussion, I am of the opinion that the death sentence cannot be executed pending the disposal of the mercy petition of the convict. It is hereby directed that the execution of death warrants against all the convicts, scheduled for March 3 at 6 am, is deferred till further orders,” the judge added.

Also read: Nirbhaya Gangrape and Murder Case: A Timeline of Events

In the post-lunch hearing, the court pulled up Singh saying, “You are playing with fire, you should be cautious” and added “one wrong move by anybody, and you know the consequences”.

Pawan was the fourth accused in the case to file a mercy plea to the President, who had earlier rejected the petitions filed by Vinay, Mukesh and Akshay Singh Thakur.

Earlier in the day, the Delhi court had dismissed the pleas of two of the four convicts who sought a stay on the execution of their death warrants.

Akshay, in his application for the stay, had said that he has filed a fresh mercy petition before the President, which is pending. He contended that his earlier mercy petition which was dismissed by the President did not have complete facts.

The court had on February 17 ordered that the four convicts, Mukesh Kumar Singh (32), Pawan Gupta (25), Vinay Kumar Sharma (26) and Akshay Kumar Singh (31), be hanged on March 3 after it issued fresh death warrants, observing that deferring the execution any further would be “sacrilegious” to the rights of the victim for expeditious justice.

The court had noted that death warrants were earlier issued on January 7 and the execution was later deferred twice, on January 17 and January 31.

“Now deferring it any further would be sacrilegious to the rights of the victim for expeditious justice,” it had said.

The first date of execution, January 22, was postponed to February 1 by a January 17 court order. Then, the trial court on January 31, stayed, “till further orders” the execution of the four convicts as they had not exhausted all their legal remedies.

(With PTI inputs)

Nirbhaya Case: SC Dismisses Curative Petition of Death Row Convict Pawan Gupta

In his curative plea, Pawan had sought commutation of his death penalty to life imprisonment.

New Delhi: The Supreme Court on Monday dismissed the curative petition filed by Pawan Gupta, one of the four death row convicts in the 2012 Nirbhaya gangrape and murder case.

A five-judge bench headed by Justice N.V. Ramana, which considered the curative plea in-chamber, also rejected Pawan’s application seeking a stay on the execution of death sentence which is scheduled for Tuesday.

“The application for an oral hearing is rejected. The application for stay of execution of a death sentence is also rejected. The curative petition is dismissed…,” the bench, also comprising Justices Arun Mishra, R.F. Nariman, R. Banumathi and Ashok Bhushan, said.

In his curative plea, Pawan had sought commutation of his death penalty to life imprisonment.

He had also sought a stay on the execution of a black warrant issued by the trial court for the hanging.

Also read: Nirbhaya Gangrape and Murder Case: A Timeline of Events

The trial court had on February 17 issued a fresh date for execution of death warrants for Tuesday at 6 am for the four convicts – Mukesh Kumar Singh (32), Pawan Gupta (25), Vinay Kumar Sharma (26) and Akshay Kumar (31) – in the case.

The mercy petitions of three convicts – Mukesh, Vinay, and Akshay – have already been dismissed by the President.

The apex court had earlier dismissed separate pleas filed by Mukesh and Vinay challenging the rejection of their mercy petitions by the President.

While Akshay has not yet challenged the rejection of his mercy petition, Pawan has not yet filed a mercy plea before the President.

On December 16, 2012, a 23-year-old physiotherapy intern, who came to be known as ”Nirbhaya” (fearless), was gang-raped and savagely assaulted in a moving bus in South Delhi. She died after a fortnight.

Six people, including the four convicts and a juvenile, were named as accused. Ram Singh, the sixth accused, allegedly committed suicide in Tihar jail days after the trial began in the case.

The juvenile was released in 2015 after spending three years in a correctional home.

Death Penalty Can’t Be Challenged All the Time by Condemned Prisoners: SC

The court was hearing the review pleas of a woman and her lover for killing seven members of her family including her 10-month-old nephew.

New Delhi: Observing that the “finality” of death sentence is extremely important, the Supreme Court on Thursday said condemned prisoners should not be under the impression that the death penalty remains “open-ended” and can be challenged all the time by them.

In remarks that came against the backdrop of the four death row convicts in the 2012 Nirbhaya gangrape-murder case filing one petition after another leading to the delay in their hanging, the court stressed it has to act as per law and judges also have a duty towards the society and the victims to deliver justice.

The observations were made by a bench comprising Chief Justice S.A. Bobde and Justices S.A. Nazeer and Sanjiv Khanna while hearing the review pleas of a woman and her lover for killing seven members of her family including parents, two brothers and their wives and strangulating her 10-month-old nephew in Uttar Pradesh in 2008.

The bench reserved its verdict on its review pleas against its 2015 judgment upholding the death penalty to the two convicts.

“One cannot go on fighting endlessly for everything,” it said.

Also read: Death Penalty Opponents Are Wrong to Ask Nirbhaya’s Parents to Forgive Her Killers

“The finality of death sentence is extremely important and a condemned prisoner should not be under the impression, that the death sentence remains open-ended and can be questioned by them all the time.”

The remarks came when senior advocates Anand Grover and Meenakshi Arora pleaded for leniency and commutation of the death penalty of Shabnam and her lover Saleem on the ground they are afforded an opportunity to reform themselves.

The plea was vehemently opposed by Solicitor General Tushar Mehta.

“A convict cannot seek mercy after killing his parents that oh ho, now I have become an orphan,” said Mehta, who appeared for the UP Government.

The law officer said that after convictions, the ground is being allowed to be taken that the death row convict has reformed himself or herself in jail then everybody will take that plea and it would open a new legal avenue for such condemned criminals.

The bench asked the lawyers to provide it the judgment on the issue of whether the court is obliged to consider the plea of reformation for commuting the death penalty off the convicts post their convictions in heinous cases like the present one.

“Every criminal is said to have an innocent heart. However, we have to look into the crime also,” the bench said when the ground of possible reformation of convicts was argued as one of the mitigating circumstances for commuting death penalty.

The bench said the scope of review plea was limited and the condemned prisoners were required to only show the “error apparent on records” of the apex court’s earlier verdict.

Also read: Centre Moves SC, Wants New Rules for Speedy Hanging of Death Row Convicts

“We do not like to emphasise only on the life and death penalty of an accused, especially when lives of seven people have been snuffed out in the present case,” the bench said, adding “The most important thing that we consider is sentencing should be proportionate to the crime.”

The bench was told by the lawyers for the convicts that they belong to a poor and uneducated background and moreover, they were first time criminals and hence be given an opportunity to reform.

It then referred to the sequence of events in the case and said the father of the woman convict was against her relationship with the co-convict and her lover and fights used to take place in the family on the issue.

In a pre-meditated manner the woman served the sedative-laced tea to all the seven family members and then her lover comes in the picture and inflicts fatal wounds on all of them by using an axe, the bench said.

“It is not the judge but the law that deals with a criminal. A judge, being a human being, cannot forgive a murderer. The law and the judge act for society. Imagine a situation when a judge tells a murderer ‘Oh yes, I forgive you!’. Imagine the impact.”

The solicitor general then mentioned the plea of Ministry of Home Affairs, which was filed on Wednesday, and said the Centre is seeking modification of the 2014 directions to ensure that a 7-day deadline is fixed for the execution of condemned prisoners after issuance of the black warrant.

The apex court had upheld the death sentence of the two convicts who are natives of Amroha in UP, in 2015.

In 2010, the Allahabad high court upheld the death sentence awarded to the duo by a sessions court.