The Supreme Court today imposed death penalty on three persons in two separate cases..The judgments in both cases were rendered by the same Bench of Justices Rohinton Nariman, R Subhash Reddy and Surya Kant. While Justice Subhash Reddy dissented in one of the judgments with respect to the sentence, the second judgment was unanimous..First Case – Ravi S/o Ashok Ghumare v. State of Maharashtra.This was an appeal against a judgment of January 2016 passed by the Bombay High Court confirming the death reference in the Sessions Case No. 127 of 2012 decided by the Additional Sessions Judge, Jalna..The appellant had been found guilty of committing offences punishable under Sections 302, 363, 376 and 377 of the Indian Penal Code (IPC), and had been awarded the sentence of death under Section 302, IPC along with the sentence of rigorous imprisonment(s) of different durations with fine for the rest of offences. The Trial Court and the High Court had concurrently held that the case fell within the exceptional category of `rarest of the rare’ cases where all other alternative options but to award death sentence, are foreclosed..The appellant in the case was charged with the rape and murder of a two-year-old girl child. Based on the information received that the appellant was found distributing chocolates to children, the father of the deceased child along with Police had reached the house of the appellant. One door of the house locked from outside while the other was locked from inside. Police broke open the door and entered the house along with the informant, his brother and a few other persons..They found the appellant in the house; deceased-victim was lying under the bed in a naked and unconscious condition. Blood was oozing out from her private parts and had multiple injuries on her body. She was covered in a blanket and taken to the hospital where the doctor declared her brought dead..The Trial Court discussed the evidence at length in the context of each point and answered them in the affirmative. It held the appellant guilty of the offences referred to above. The Trial Court thereafter compared the `aggravating circumstances’ vis-a-vis the `mitigating circumstances’. Having found that the crime was committed in a most brutal, diabolical and revolting manner which shook the collective conscience of the society, it found that the Rarest of Rare Test (RR test) was fully attracted. Hence capital punishment was imposed on the appellant under Section 302, IPC..The High Court considered the death reference as well as the appeal preferred by the appellant against the trial Court judgment. After scrutinising the prosecution evidence, it held that the same led to the irrefutable conclusion that it was the appellant who took away the victim child to his house, sexually assaulted her, committed unnatural intercourse and throttled her to death. Consequently, the conviction of the appellant under Sections 302, 376, 377 and 363 of the IPC was upheld..The High Court thereafter engaged itself on the question of quantum of sentence and as to whether the Rarest of Rare Test was attracted to the facts and circumstances of this case. The High Court drew up the balance sheet of the ‘aggravating’ and ‘mitigating’ circumstances and after their comparative analysis, it concurred with the extreme penalty awarded by the trial Court and confirmed the death sentence..This led to the appeal in Supreme Court..The Supreme Court after a tenacious analysis of the testimonies of the witnesses with respect to the facts seen by each one of them concluded that there was no doubt that it was the appellant who had committed the crime. Scientific evidence also connected the appellant with the crime, the Court stated..Thus, it concluded that an overwhelming eye-witness account, circumstantial evidence, medical evidence and DNA analysis on record conclusively proved that it was the appellant alone who committed the crime in this case. It, therefore, “unhesitatingly” upheld the conviction of the appellant.On the question of sentence, Counsel for the appellant Nitya Ramakrishnan vehemently urged that the Courts below were influenced by the ‘nature’ and ‘brutality’ of the crime while awarding the sentence of death penalty. She referred to a list of 35 decisions rendered by the Supreme Court in the cases of rape and murder of a child-victim in which the death sentences were commuted to life imprisonment. It was urged that the brutality of the crime alone is not sufficient to impose the sentence of death; it is imperative on the State to establish that the convict is beyond reform. To this end it is relevant to see whether this is the first conviction or there have been previous crimes..State Counsel Nishant R Katneshwarkar maintained that the instant case satisfies the principle of ‘rarest of the rare cases’ and the appellant who committed the crime of rape and murder of a barely 2-year old innocent toddler in the most dastardly manner does not deserve any leniency..The Supreme Court placed extensive reliance on the judgments of the Supreme Court in Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab..In this context, it placed reliance on two principles – the “society centric” approach and the victims’ rights..The object and purpose of determining the quantum of sentence has to be ‘society centric’ without being influenced by a `judge’s’ own views, for society is the biggest stakeholder in the administration of the criminal justice system..A society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements. The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterrent punishment that commensurate with the gravity of offence, the Court observed..Regarding the victim jurisprudence, the Court noted that the de facto sufferer of crime has no say in the adjudicatory process and is made to sit outside the court as a mute spectator..“The ethos of criminal justice dispensation to prevent and punish `crime’ would surreptitiously turn its back on the `victim’ of such crime whose cries went unheard for centuries in the long corridors of the conventional apparatus. A few limited rights, including to participate in the trial have now been bestowed on a `victim’ in India by the Act No. 5 of 2009 whereby some pragmatic changes in Cr.P.C. have been made.”.The Sentencing Policy, therefore, needs to strike a balance between the two sides and count upon the twin test of (i) deterrent effect, or (ii) complete reformation for the integration of the offender in civil society..The Court also adverted to the recent amendments carried out by Parliament in the Protection of Children from Sexual Offences Act, 2012 by way of The Protection of Children from Sexual Offences (Amendment) Act, 2019..The unamended Act defines “Aggravated Penetrative Sexual Assault” in Section 5, which included, “whoever commits aggravated penetrative sexual assault on a child below the age of 12 years.” Originally, the punishment for an aggravated sexual assault was rigorous imprisonment for a term not less than 10-years but which may extend for imprisonment for life with fine. The same was amended and the minimum sentence for an aggravated penetrative sexual assault has now been increased from 10 years to 20 years and imprisonment for life has now been expressly stated to be imprisonment for the natural life of the person..Significantly, death sentence has also been introduced as a penalty for the offence of aggravated penetrative sexual assault on a child below 12 years, the Court noted..Thus, the Court reasoned that the Legislature has impliedly distanced itself from the propounders of “No-Death Sentence” in “No Circumstances” theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12 years without murder of the victim, death penalty can also be imposed..Even though the amended statute does not apply in the present case, since the crime was committed before the amendment, the amended statute points to the latest Legislative Policy, the Court said..In light of the above, the Court upheld the death sentence while stating that his conduct lacked kindness and leads to a belief that he cannot be reformed..“…the victim was barely a two-year old baby whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last. The appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger. He ruthlessly finished a life which was yet to bloom. The appellant instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust…The appellant meticulously executed his nefarious design by locking one door of his house from the outside and bolting the other one from the inside so as to deceive people into believing that nobody was inside. The appellant was thus in his full senses while he indulged in this senseless act…His deliberate, well-designed silence with a standard defence of `false’ accusation reveals his lack of kindness or compassion and leads to believe that he can never be reformed.”.Justice R Subhash Reddy wrote a separate judgment in which he upheld the conviction but dissented with respect to the sentence by modifying the death penalty to life imprisonment..Second case – Ishwari Lal Yadav and ors v. State of Chhattisgarh.This case concerned appeals challenging two judgments of the Chhattisgarh High Court in 2014 and 2016, whereby the death penalty was awarded to a husband-wife duo, Ishwari Lal Yadav and Kiran Bai for having murdered two children, aged six years and two years, pursuant to black magic activities..The matter dated back to 2010. A six-year-old girl was reported missing in March of that year by her parents. Months later, in November that year, the skeletal remains of the girl were found in the compound of the house belonging to the two accused, while searching for a two-year-old boy who had gone missing..The two-year-old boy was found buried in the same compound by a crowd of villagers with his head severed and his cheeks slashed. The two accused confessed to having murdered the boy in furtherance of their tantrik activities. Moreover, the duo also confessed to having similarly murdered the six-year-old, months earlier..Considering the cruel and gruesome nature of the murders, the two accused were served the death penalty, whereas their disciples were punished for kidnapping the children with the intent to murder and criminal conspiracy. The appellants were also punished under Section 201 of the Indian Penal Code for having hidden evidence of the six-year-old girl’s murder..In the appeal before the Court, it was contended that the trial court and the High Court had erred in relying on an extra-judicial confession while punishing the appellants with death..The Supreme Court, however, pointed out that extra-judicial confessions could be relied upon if there is sufficient corroborative evidence. The Bench unanimously ruled that in both cases of murder, there was clear evidence on record which lent credence to the confession made by the two main accused..In judgment concerning the murder of two-year old Chiraj, the Bench noted,.“In this case it clear from the evidence on record, the main accused, namely, Ishwari Lal Yadav and Kiran Bai have committed the murder of the two year old child Chirag as a sacrifice to the God.”.As noted in the judgment concerning the murder of six-year-old Manisha,.“It is true that extra judicial confession, is a weak piece of evidence but at the same time if the same is corroborated by other evidences on record, such confession can be taken into consideration to prove the guilt of the accused. In the case on hand, the evidence from independent witnesses is in one voice and consistent. The medical evidence on record also substantiated the case of the prosecution…. As such it is clearly proved beyond any reasonable doubt that the appellants are responsible for the offence alleged against them.”.In this case, a DNA test had also proved that the skeletal remains found in the compound of the main accused were that of Manisha’s..The Court proceeded to confirm the death penalty of the two main accused in both cases, taking into consideration the gruesome nature of the murders committed. The Bench observed,.“It is to be noticed, they were having three minor children at that time. Inspite of the same, they committed the murder of the deceased, a child of two years of age brutally. The head of the helpless child was severed, his tongue and cheeks were also cut. Having regard to age of the accused, they were not possessed of the basic humanness, they completely lacked the psyche or mindset which can be amenable for any reformation. It is a planned murder committed by the aforesaid two appellants….we are of the view that this is a case of “rarest of rare cases” where death sentence imposed by the trial court is rightly confirmed by the High Court….“.“Considering the gruesome nature of murder the sentence imposed by the High Court is to be confirmed.“.However, the Court found that the prosecution had not proved their case as regards the charges of kidnapping and conspiracy against the disciples of the two main accused. Therefore, the Court allowed the appeals filed by these persons against the imprisonment term imposed for these offences. With respect to these appellants, the Bench ruled,.“If we closely analyse the evidence on record the common intention stands proved between Ishwari Lal Yadav and Kiran Bai who are main accused but at the same time there is no acceptable evidence against all others to prove their guilt that they have committed the offence with the common intention. Prosecution has failed to prove the common intention of all other appellants than the main accused, namely, Ishwari Lal Yadav and Kiran Bai, either to kidnap or to murder the deceased child on the day of occurrence.“.All the same, in the case concerning the murder of Manisha, the Court found that disciples of the main accused were also liable to be punished for hiding evidence along with the two main accused. The Bench, therefore, ruled,.“… as there is no acceptable evidence on record except the alleged confession to prove the offence under Sections 364/34 read with 120B IPC, the appellants are entitled for acquittal for offences punishable under Sections 364/34 and 120B IPC. At the same time, by burying the dead body of the deceased caused disappearance of evidence of offence, they are rightly convicted for offence under Section 201 IPC.”.[Read the judgment in Ravi S/o Ashok Ghumare v. State of Maharashtra].[Read the Judgment in Ishwari Lal Yadav and ors v. State of Chhattisgarh]
The Supreme Court today imposed death penalty on three persons in two separate cases..The judgments in both cases were rendered by the same Bench of Justices Rohinton Nariman, R Subhash Reddy and Surya Kant. While Justice Subhash Reddy dissented in one of the judgments with respect to the sentence, the second judgment was unanimous..First Case – Ravi S/o Ashok Ghumare v. State of Maharashtra.This was an appeal against a judgment of January 2016 passed by the Bombay High Court confirming the death reference in the Sessions Case No. 127 of 2012 decided by the Additional Sessions Judge, Jalna..The appellant had been found guilty of committing offences punishable under Sections 302, 363, 376 and 377 of the Indian Penal Code (IPC), and had been awarded the sentence of death under Section 302, IPC along with the sentence of rigorous imprisonment(s) of different durations with fine for the rest of offences. The Trial Court and the High Court had concurrently held that the case fell within the exceptional category of `rarest of the rare’ cases where all other alternative options but to award death sentence, are foreclosed..The appellant in the case was charged with the rape and murder of a two-year-old girl child. Based on the information received that the appellant was found distributing chocolates to children, the father of the deceased child along with Police had reached the house of the appellant. One door of the house locked from outside while the other was locked from inside. Police broke open the door and entered the house along with the informant, his brother and a few other persons..They found the appellant in the house; deceased-victim was lying under the bed in a naked and unconscious condition. Blood was oozing out from her private parts and had multiple injuries on her body. She was covered in a blanket and taken to the hospital where the doctor declared her brought dead..The Trial Court discussed the evidence at length in the context of each point and answered them in the affirmative. It held the appellant guilty of the offences referred to above. The Trial Court thereafter compared the `aggravating circumstances’ vis-a-vis the `mitigating circumstances’. Having found that the crime was committed in a most brutal, diabolical and revolting manner which shook the collective conscience of the society, it found that the Rarest of Rare Test (RR test) was fully attracted. Hence capital punishment was imposed on the appellant under Section 302, IPC..The High Court considered the death reference as well as the appeal preferred by the appellant against the trial Court judgment. After scrutinising the prosecution evidence, it held that the same led to the irrefutable conclusion that it was the appellant who took away the victim child to his house, sexually assaulted her, committed unnatural intercourse and throttled her to death. Consequently, the conviction of the appellant under Sections 302, 376, 377 and 363 of the IPC was upheld..The High Court thereafter engaged itself on the question of quantum of sentence and as to whether the Rarest of Rare Test was attracted to the facts and circumstances of this case. The High Court drew up the balance sheet of the ‘aggravating’ and ‘mitigating’ circumstances and after their comparative analysis, it concurred with the extreme penalty awarded by the trial Court and confirmed the death sentence..This led to the appeal in Supreme Court..The Supreme Court after a tenacious analysis of the testimonies of the witnesses with respect to the facts seen by each one of them concluded that there was no doubt that it was the appellant who had committed the crime. Scientific evidence also connected the appellant with the crime, the Court stated..Thus, it concluded that an overwhelming eye-witness account, circumstantial evidence, medical evidence and DNA analysis on record conclusively proved that it was the appellant alone who committed the crime in this case. It, therefore, “unhesitatingly” upheld the conviction of the appellant.On the question of sentence, Counsel for the appellant Nitya Ramakrishnan vehemently urged that the Courts below were influenced by the ‘nature’ and ‘brutality’ of the crime while awarding the sentence of death penalty. She referred to a list of 35 decisions rendered by the Supreme Court in the cases of rape and murder of a child-victim in which the death sentences were commuted to life imprisonment. It was urged that the brutality of the crime alone is not sufficient to impose the sentence of death; it is imperative on the State to establish that the convict is beyond reform. To this end it is relevant to see whether this is the first conviction or there have been previous crimes..State Counsel Nishant R Katneshwarkar maintained that the instant case satisfies the principle of ‘rarest of the rare cases’ and the appellant who committed the crime of rape and murder of a barely 2-year old innocent toddler in the most dastardly manner does not deserve any leniency..The Supreme Court placed extensive reliance on the judgments of the Supreme Court in Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab..In this context, it placed reliance on two principles – the “society centric” approach and the victims’ rights..The object and purpose of determining the quantum of sentence has to be ‘society centric’ without being influenced by a `judge’s’ own views, for society is the biggest stakeholder in the administration of the criminal justice system..A society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements. The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterrent punishment that commensurate with the gravity of offence, the Court observed..Regarding the victim jurisprudence, the Court noted that the de facto sufferer of crime has no say in the adjudicatory process and is made to sit outside the court as a mute spectator..“The ethos of criminal justice dispensation to prevent and punish `crime’ would surreptitiously turn its back on the `victim’ of such crime whose cries went unheard for centuries in the long corridors of the conventional apparatus. A few limited rights, including to participate in the trial have now been bestowed on a `victim’ in India by the Act No. 5 of 2009 whereby some pragmatic changes in Cr.P.C. have been made.”.The Sentencing Policy, therefore, needs to strike a balance between the two sides and count upon the twin test of (i) deterrent effect, or (ii) complete reformation for the integration of the offender in civil society..The Court also adverted to the recent amendments carried out by Parliament in the Protection of Children from Sexual Offences Act, 2012 by way of The Protection of Children from Sexual Offences (Amendment) Act, 2019..The unamended Act defines “Aggravated Penetrative Sexual Assault” in Section 5, which included, “whoever commits aggravated penetrative sexual assault on a child below the age of 12 years.” Originally, the punishment for an aggravated sexual assault was rigorous imprisonment for a term not less than 10-years but which may extend for imprisonment for life with fine. The same was amended and the minimum sentence for an aggravated penetrative sexual assault has now been increased from 10 years to 20 years and imprisonment for life has now been expressly stated to be imprisonment for the natural life of the person..Significantly, death sentence has also been introduced as a penalty for the offence of aggravated penetrative sexual assault on a child below 12 years, the Court noted..Thus, the Court reasoned that the Legislature has impliedly distanced itself from the propounders of “No-Death Sentence” in “No Circumstances” theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12 years without murder of the victim, death penalty can also be imposed..Even though the amended statute does not apply in the present case, since the crime was committed before the amendment, the amended statute points to the latest Legislative Policy, the Court said..In light of the above, the Court upheld the death sentence while stating that his conduct lacked kindness and leads to a belief that he cannot be reformed..“…the victim was barely a two-year old baby whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last. The appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger. He ruthlessly finished a life which was yet to bloom. The appellant instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust…The appellant meticulously executed his nefarious design by locking one door of his house from the outside and bolting the other one from the inside so as to deceive people into believing that nobody was inside. The appellant was thus in his full senses while he indulged in this senseless act…His deliberate, well-designed silence with a standard defence of `false’ accusation reveals his lack of kindness or compassion and leads to believe that he can never be reformed.”.Justice R Subhash Reddy wrote a separate judgment in which he upheld the conviction but dissented with respect to the sentence by modifying the death penalty to life imprisonment..Second case – Ishwari Lal Yadav and ors v. State of Chhattisgarh.This case concerned appeals challenging two judgments of the Chhattisgarh High Court in 2014 and 2016, whereby the death penalty was awarded to a husband-wife duo, Ishwari Lal Yadav and Kiran Bai for having murdered two children, aged six years and two years, pursuant to black magic activities..The matter dated back to 2010. A six-year-old girl was reported missing in March of that year by her parents. Months later, in November that year, the skeletal remains of the girl were found in the compound of the house belonging to the two accused, while searching for a two-year-old boy who had gone missing..The two-year-old boy was found buried in the same compound by a crowd of villagers with his head severed and his cheeks slashed. The two accused confessed to having murdered the boy in furtherance of their tantrik activities. Moreover, the duo also confessed to having similarly murdered the six-year-old, months earlier..Considering the cruel and gruesome nature of the murders, the two accused were served the death penalty, whereas their disciples were punished for kidnapping the children with the intent to murder and criminal conspiracy. The appellants were also punished under Section 201 of the Indian Penal Code for having hidden evidence of the six-year-old girl’s murder..In the appeal before the Court, it was contended that the trial court and the High Court had erred in relying on an extra-judicial confession while punishing the appellants with death..The Supreme Court, however, pointed out that extra-judicial confessions could be relied upon if there is sufficient corroborative evidence. The Bench unanimously ruled that in both cases of murder, there was clear evidence on record which lent credence to the confession made by the two main accused..In judgment concerning the murder of two-year old Chiraj, the Bench noted,.“In this case it clear from the evidence on record, the main accused, namely, Ishwari Lal Yadav and Kiran Bai have committed the murder of the two year old child Chirag as a sacrifice to the God.”.As noted in the judgment concerning the murder of six-year-old Manisha,.“It is true that extra judicial confession, is a weak piece of evidence but at the same time if the same is corroborated by other evidences on record, such confession can be taken into consideration to prove the guilt of the accused. In the case on hand, the evidence from independent witnesses is in one voice and consistent. The medical evidence on record also substantiated the case of the prosecution…. As such it is clearly proved beyond any reasonable doubt that the appellants are responsible for the offence alleged against them.”.In this case, a DNA test had also proved that the skeletal remains found in the compound of the main accused were that of Manisha’s..The Court proceeded to confirm the death penalty of the two main accused in both cases, taking into consideration the gruesome nature of the murders committed. The Bench observed,.“It is to be noticed, they were having three minor children at that time. Inspite of the same, they committed the murder of the deceased, a child of two years of age brutally. The head of the helpless child was severed, his tongue and cheeks were also cut. Having regard to age of the accused, they were not possessed of the basic humanness, they completely lacked the psyche or mindset which can be amenable for any reformation. It is a planned murder committed by the aforesaid two appellants….we are of the view that this is a case of “rarest of rare cases” where death sentence imposed by the trial court is rightly confirmed by the High Court….“.“Considering the gruesome nature of murder the sentence imposed by the High Court is to be confirmed.“.However, the Court found that the prosecution had not proved their case as regards the charges of kidnapping and conspiracy against the disciples of the two main accused. Therefore, the Court allowed the appeals filed by these persons against the imprisonment term imposed for these offences. With respect to these appellants, the Bench ruled,.“If we closely analyse the evidence on record the common intention stands proved between Ishwari Lal Yadav and Kiran Bai who are main accused but at the same time there is no acceptable evidence against all others to prove their guilt that they have committed the offence with the common intention. Prosecution has failed to prove the common intention of all other appellants than the main accused, namely, Ishwari Lal Yadav and Kiran Bai, either to kidnap or to murder the deceased child on the day of occurrence.“.All the same, in the case concerning the murder of Manisha, the Court found that disciples of the main accused were also liable to be punished for hiding evidence along with the two main accused. The Bench, therefore, ruled,.“… as there is no acceptable evidence on record except the alleged confession to prove the offence under Sections 364/34 read with 120B IPC, the appellants are entitled for acquittal for offences punishable under Sections 364/34 and 120B IPC. At the same time, by burying the dead body of the deceased caused disappearance of evidence of offence, they are rightly convicted for offence under Section 201 IPC.”.[Read the judgment in Ravi S/o Ashok Ghumare v. State of Maharashtra].[Read the Judgment in Ishwari Lal Yadav and ors v. State of Chhattisgarh]
