Supreme Court: While exercising its inherent jurisdiction by way of a review petition in a criminal appeal, the full bench of Dr. Dhananjaya Y. Chandrachud*, C.J., Hima Kohli and Pamidighantam Sri Narasimha, J.J., has commuted the death sentence of the petitioner convicted for the offence of kidnapping and murder of a 7-year-old minor, to life imprisonment for not less than 20 years, without remission.
“Though the crime committed by the petitioner is unquestionably grave and unpardonable, it is not appropriate to affirm the death sentence that was awarded to him…the ‘rarest of rare’ doctrine requires that the death sentence not be imposed only by taking into account the grave nature of crime but only if there is no possibility of reformation in a criminal.”
Legal Trajectory
The petitioner had challenged the judgement of conviction by the Sessions Judge which was confirmed by the Madras High Court and Supreme Court who entered into a detailed appreciation of facts before confirming the conviction.
The petitioner referred to Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India, (2014) 9 SCC 737 which had held that review petitions arising from conviction and the imposition of the sentence of death must be heard in open court and cannot be disposed of by circulation. The present petition was sought to be reopened in terms of the judgment referred above.
Factual Matrix
The verdict came after a review petition was filed by the petitioner who had kidnapped the minor on 27-07-2009 while he was returning from school. On the same tragic night of the incident, minor’s mother had received a ransom call demanding Rs 5 lakh. On 30-07-2009, the police raided the house of the petitioner and arrested him along with a co-accused who was later acquitted. The petitioner confessed to strangling the deceased, putting his dead body in a gunny bag and throwing it in the Meerankulam tank. The body of the deceased was recovered from the tank on the basis of the confessional statement.
Court Analysis
The Court stated that section 65B was inserted in the Indian Evidence Act, 1872 by the Information Technology Act, 2000 which provided for admissibility of electronic records. The petitioner had argued that the number through which the ransom call was made did not belong to him, however, the mobile with SIM card was seized from him. He had contended that the Call Detail Record (‘CDR’) could not be relied upon due to lack of production of Section 65B certificate. The Court dismissed the objection raised at a belated stage that the CDRs were inadmissible in the absence of Section 65B certificate. Accordingly, it was deemed appropriate to consider the review petition by eschewing the electronic evidence.
The Court noted that the prosecution witnesses (‘PW’) 2 and 3 provided unimpeachable evidence which also confirmed that the minor was last seen with the petitioner. It was observed that the petitioner had acknowledged evidence that had established kidnapping, and it was noted that there was sufficient evidence to hold the petitioner guilty of murder, as material objects were recovered on the basis of the petitioner’s statement. The evidence in the form of CDRs were merely to corroborate the evidence that had been given through the depositions of PW1 and PW8 which stood corroborated.
The Court noted that even if the CDRs were not relied upon, the case of the prosecution was not weakened as the documentary evidence and witness testimonies remained unblemished regardless.
“We see no reason in the review jurisdiction to interfere with the concurrent findings of the Trial Court, High Court and this Court vis-à-vis the guilt of the petitioner for kidnapping and murdering the victim.” observed the Bench.
Sentencing and Mitigation
The Bench was of the view that the Trial Court and the appellate Courts had applied the relevant standard to confirm the guilt of the petitioner, which was based on circumstantial evidence, thus, will not be appropriate to once again venture into the assessment of the evidence in the review jurisdiction in view of its limited scope.
The Court, however, considered the need of a separate hearing on the issue of sentence after recording the conviction of an accused for an offence punishable by death while navigating through Section 235 of Code of Criminal Procedure, 1973 and catena of judgements in support of, therefore concluded that a meaningful, real and effective hearing was not afforded to the petitioner. No mitigating circumstances of the petitioner were taken into account at any stage of the trial or the appellate process even though the petitioner was sentenced to capital punishment.
The Bench also took note of the fact that the Supreme Court in appeal had taken note of the ‘aggravating circumstances’ by way of the fact that “the choice of kidnapping the particular child for ransom, was well planned and consciously motivated. The parents of the deceased had four children – three daughters and one son. Kidnapping the only male child was to induce maximum fear in the mind of his parents. Purposefully killing the sole male child, has grave repercussions for the parents of the deceased. Agony for parents for the loss of their only male child, who would have carried further the family lineage, and is expected to see them through their old age, is unfathomable. Extreme misery caused to the aggrieved party, certainly adds to the aggravating circumstances.”
The Bench was of the view that the sex of the child could not be in itself considered as an aggravating circumstance by a Constitutional Court. The murder of a young child was unquestionably a grievous crime and the young age of such a victim, as well as the trauma that it caused the entire family was in itself, undoubtedly, an aggravating circumstance.
“In such a circumstance, it does not and should not matter for a constitutional court whether the young child was a male child or a female child. The murder remains equally tragic. Courts should also not indulge in furthering the notion that only a male child furthers family lineage or is able to assist the parents in old age. Such remarks involuntarily further patriarchal value judgements that courts should avoid regardless of the context.”
The bench navigated through Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 to underline the importance of considering the probability of reform and rehabilitation of the convicted accused before sentencing him to death. It also referred to Bachan Singh v. State of Punjab, (1980) 2 SCC 684 which laid down the requirement for meeting the standard of ‘rarest of rare’ for awarding the death penalty which requires the Court to conclude that the convict was not fit for any kind of reformatory and rehabilitation scheme.
The Court was of the view that no such inquiry was conducted for enabling a consideration of the factors mentioned above in case of the petitioner. Though the Court upheld the death penalty due to lack of mitigating circumstances, however there were no material on record bearing on the probability of reform.
“The court cannot be an indifferent by-stander in the process. The process and powers of the court may be utilised to ensure that such material is made available to it to form a just sentencing decision bearing on the probability of reform.”
During the course of hearing of the review petition, the Bench had directed the State to get instructions from jail authorities on:
(i) the conduct of the petitioner in jail.
(ii) information on petitioner’s involvement in any other case.
(iii) details of the petitioner acquiring education in jail.
(iv) details of petitioner’s medical records.
(v) any other relevant information.
The Court noted that a document from the year 2018 stated that the petitioner had tried to escape from prison on 06-11-2013, an information which was not included in the State’s affidavit, thus, the non-disclosure of material facts amounted to misleading the Court and an attempt to interfere with the administration of justice. Accordingly, the Court initiated suo motu contempt proceedings against the respondent for withholding material information.
The Bench opined that even though the petitioner had committed a ghastly crime, mitigating circumstance must be considered. Thus, commuted the death sentence of the petitioner to undergo life imprisonment for 20 years without remission of sentence.
[Sundar v State by Inspector of Police, 2023 SCC OnLine SC 310, decided on 21-03-2023]
Judgment authored by CJI Dr Dhananjaya Y Chandrachud
Advocates who appeared in this case:
For the petitioner- Advocate Renjith B. Marar, Advocate on record Renjith. B, Advocate Lakshmi N. Kaimal, Advocate Santhosh M.j., Advocate Arun Poomulli, Advocate Preetha S Chandran, Advocate Abhijith Sreekumar, Advocate Davesh Kumar Sharma, Advocate Ashu Jain;
For the respondent- Additional Advocate General V. Krishnamurthy, Advocate on Record Joseph Aristotle S., Advocate Shobhit Dwivedi, Advocate Vaidehi Rastogi.
