Death sentence has always been a question of controversy, while on one hand it becomes a matter of human rights with respect to the accused; on the other hand it is one of weighing the gravity of the crime and its impact on the society. However, in the wake of the recent gang rape that took place in the city of Delhi, society has voiced strong opinion to award death sentence to the perpetrators. In the said case the death of the rape victim has led to imposition of section 302, IPC that prescribes the punishment for murder.
The crime of rape simpliciter does not attract death penalty under the current provisions of law. In fact the maximum punishment which can be sentenced under Section 376, IPC is life imprisonment. The article here looks at four judgments of the Supreme Court given in the last year i.e. 2012 to analyse the stand of the Apex Court on the situation where the rape victim eventually died and the considerations under which death sentence can be given to the accused in a case. As an established rule death penalty can only be awarded in the “rarest of the rare” cases.
It may also be reinstated beforehand that causing the death of a person itself does not necessarily lead to imposition of death sentence. The court takes into consideration both aggravating and mitigating circumstances, a line of thought that has developed over the years in various judicial pronouncements.
The cases below and the relevant observations from each judgment throws light on the judicial discourse relevant for understanding the working of law and sentencing decisions.
Case Study 1
Rajendra Pralhadrao Wasnik vs. The State of Maharashtra (CRIMINAL APPEAL NOS.145-146 OF 2011)
Brief Facts of the case: The appellant lured the 3 year old victim with the promise of buying her biscuits. Took her to a deserted place and raped her. Thereafter in a bid to destroy evidence he killed her.
Decision: The Supreme Court upheld the Trial Court and High Court decision of death sentence for offence of murder and life imprisonment for offence of rape. The case was held to be eligible to fall in the category of “rarest of rare” to warrant death sentence. The court while affirming the punishment observed that the child whose medical record showed grave injuries on her body must have suffered brutally which shocked the conscience of the society.
Case Study 2
Ramnaresh & Ors. Vs. State of Chhattisgarh (CRIMINAL APPEAL NOS.166-167 OF 2010)
Brief Facts: The 4 accused raped the victim who was a mother of two infants. The accused entered her house while her husband was away and took turns to rape her, after which she was found dead by the servant. One of the accused persons was the brother-in-law of the deceased victim.
Decision: The Apex court partially allowed the appeal by commuting the death sentence to life imprisonment of 21 years. The court while giving this judgment weighed the fact that the accused were of young age and the possibility of reforming them could not be ruled out also that there was a possibility of the victim dying accidently.
The Court that it could not be said with certainty that the case fell in “rarest of the rare case”.
Case Study 3
Neel Kumar @ Anil Kumar vs. The State of Haryana (Criminal Appeal No. 523 of 2010)
Brief Facts: The father of a 4 year old girl raped her while the mother was visiting her parental house. Thereafter the child victim was killed and the body concealed.
Decision: The Trial Court gave death sentence for the offence of murder and life imprisonment for rape. The High Court confirmed the death sentence. However, the Supreme Court set aside the death sentence and ordered for him to serve a minimum sentence of 30 years.
Case study 4
State of U.P. vs. Sanjay Kumar (SLP (Crl.) No.6467/2012(Crl.M.P.No. 17082/2012)
Brief Facts: The accused working as white wash worker in the house in which the victim was residing with her uncle and aunt. The accused in the absence of the said uncle and aunt killed the girl and the post mortem report showed that there was sexual assault as well.
Decision: The High Court commuted the death sentence, given by the Trial Court, to life imprisonment. Supreme Court upheld the High Court verdict.
A brief look at the final decision of the Supreme Court shows that out of the four cases analysed only in one case did the Supreme Court upheld the death penalty. In three cases the death penalty was commuted to life imprisonment as the case did not fall in the category of “rarest of rare” case.
The relevant considerations for arriving at the decisions have been discussed at length in Rajendra Pralhadrao Wasnik Vs. The State of Maharashtra where Justice Swatanter Kumar, observed “This very Bench in a recent judgment, considered various judgments of this Court by different Benches right from Bachan Singh’s case, in relation to the canons governing the imposition of death penalty and illustratively stated the aggravating circumstances, mitigating circumstances and the principles that would be applied by the Courts in determining such a question. It will be useful to refer to the judgment of this Bench in the case of Ramnaresh vs. State of Chattisgarh, Crl. Appeal No. 166-167/2010 decided on February 28, 2012 wherein it was held as under: –
“The above judgments provide us with the dicta of the Court relating to imposition of death penalty. Merely because a crime is heinous per se may not be a sufficient reason for the imposition of death penalty without reference to the other factors and attendant circumstances. Most of the heinous crimes under the IPC are punishable by death penalty or life imprisonment. That by itself does not suggest that in all such offences, penalty of death should be awarded. We must notice, even at the cost of repetition, that in such cases awarding of life imprisonment would be a rule, while ‘death’ would be the exception. The term ‘rarest of rare case’ which is the consistent determinative rule declared by this Court, itself suggests that it has to be an exceptional case. The life of a particular individual cannot be taken away except according to the procedure established by law and that is the constitutional mandate. The law contemplates recording of special reasons and, therefore, the expression ‘special’ has to be given a definite meaning and connotation. ‘Special reasons’ in contra-distinction to ‘reasons’ simpliciter conveys the legislative mandate of putting a restriction on exercise of judicial discretion by placing the requirement of special reasons. Since, the later judgments of this Court have added to the principles stated by this Court in the case of Bachan Singh (supra) and Machhi Singh (supra), it will be useful to restate the stated principles while also bringing them in consonance, with the recent judgments.”
Further the Court observed that the principles that were stated in the case of Bachan Singh (supra) and thereafter, in the case of Machhi Singh (supra)are dissected into two different compartments – one being the ‘aggravating circumstances’ while the other being the ‘mitigating circumstance’. The Court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring their classes under other heads. 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 as contemplated under Section 354(3) Cr.P.C.
Thereafter the Court enunciated the two categories of factors to be considered thus:
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 Cr.P.C.
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.
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 behaviour 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 behaviour 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 comission 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.
While determining the questions relatable to sentencing policy, the Court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence.
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 circumstances.
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.
Justice Swatanter Kumar further observed that, “Stated broadly, these are the accepted indicators for the exercise of judicial discretion but it is always preferred not to fetter the judicial discretion by attempting to make the excessive enumeration, in one way or another. In other words, these are the considerations which may collectively or otherwise weigh in the mind of the Court, while exercising its jurisdiction. It is difficult to state, it as an absolute rule. Every case has to be decided on its own merits. The judicial pronouncements, can only state the precepts that may govern the exercise of judicial discretion to a limited extent. Justice may be done on the facts of each case. These are the factors which the Court may consider in its endeavour to do complete justice between the parties.
The Court then would draw a balance sheet of aggravating and mitigating circumstances. Both aspects have to be given their respective weightage. The Court has to strike a balance between the two and see towards which side the scale/balance of justice tilts. The principle of proportion between the crime and the punishment is the principle of ‘just deserts’ that serves as the foundation of every criminal sentence that is justifiable. In other words, the ‘doctrine of proportionality’ has a valuable application to the sentencing policy under the Indian criminal jurisprudence. Thus, the court will not only have to examine what is just but also as to what the accused deserves keeping in view the impact on the society at large. Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole. Thus, the Courts should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death. Wherever, the offence which is committed, manner in which it is committed, its attendant circumstances and the motive and status of the victim, undoubtedly brings the case within the ambit of ‘rarest of rare’ cases and the Court finds that the imposition of life imprisonment would be inflicting of inadequate punishment, the Court may award death penalty. Wherever, the case falls in any of the exceptions to the ‘rarest of rare’ cases, the Court may exercise its judicial discretion while imposing life imprisonment in place of death sentence.”
Further inRamnaresh & Ors. Vs. State of Chhattisgarh while elucidating on the sentencing pattern and punishment of death penalty, the court observed:
“Despite the transformation of approach and radical changes in principles of sentencing across the world, it has not been possible to put to rest the conflicting views on sentencing policy. The sentencing policy being a significant and inseparable facet of criminal jurisprudence, has been inviting the attention of the Courts for providing certainty and greater clarity to it. Capital punishment has been a subject matter of great social and judicial discussion and catechism. From whatever point of view it is examined, one undisputable statement of law follows that it is neither possible nor prudent to state any universal formula which would be applicable to all the cases of criminology where capital punishment has been prescribed. It shall always depend upon the facts and circumstances of a given case. This Court has stated various legal principles which would be precepts on exercise of judicial discretion in cases where the issue is whether the capital punishment should or should not be awarded. Awarding of death sentence amounts to taking away the life of an individual, which is the most valuable right available, whether viewed from the constitutional point of view or from the human rights point of view. The condition of providing special reasons for awarding death penalty is not to be construed linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable. The circumstances and the manner of committing the crime should be such that it pricks the judicial conscience of the court to the extent that the only and inevitable conclusion should be awarding of death penalty.”
In State of U.P. Vs. Sanjay Kumar the court while illuminating on the importance of striking a balance between mitigating and aggravating circumstances observed thus, “Sentencing Policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment. By introducing more uniformity and consistency into the sentencing process, the objective of the policy, is to make it easier to predict sentencing outcomes. Sentencing policies are needed to address concerns in relation to unfettered judicial discretion and lack of uniform and equal treatment of similarly situated convicts. The principle of proportionality, as followed in various judgements of this Court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.”
The above discussed judicial opinions which have come to be accepted as important principles of law are relevant for consideration while awarding the punishment to the accused. While the decisions of the Supreme Court may appear to be unjust to our common sense the above discussion goes a long way in understanding the working of the justice delivery system keeping aside the anger and hate against criminals.