Constitution of India : Arts. 137 – Review jurisdiction in matters pertaining to capital punishment – Scope of – Petitioner accused of kidnapping and murdering a 7-year old child – Conviction u/ss. 364A, 302 and 201 IPC and imposition of death sentence by the courts below – Upheld by this Court – Review thereagainst – Dismissed through circulation – However, in view of the judgment in Mohd. Arif’s case, order dismissing the review petition through circulation recalled and the petition heard in open Court – Held: None of the grounds raised amount to errors apparent on the face of the record – All the grounds fail to raise any reasonable doubt in the prosecution case – Thus, no reason to interfere with the concurrent findings of the trial court, the High Court and this Court vis-a-vis the guilt of the petitioner for kidnapping and murdering the victim – Even though the crime committed by the petitioner is unquestionably grave and unpardonable, it is not appropriate to affirm the death sentence awarded to him – ‘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 – No mitigating circumstances were placed before any of the appellate courts – It cannot be said that there is no possibility of reformation even though the petitioner has committed a ghastly crime – Also it was submitted that the hearing was not conducted separately in the trial court – Thus, in view of the gruesome nature of the crime of murder of 7 year old child, the death sentence is commuted to life imprisonment for not less than twenty years without reprieve or remission – Supreme Court Rules 2013 – Ord. XLVII r. 1.
Sentence/sentencing:
Capital punishment – Mitigating circumstances – Consideration of, while deciding upon the sentence – Held: Duty of the court is to enquire into mitigating circumstances as well as to foreclose the possibility of reformation and rehabilitation before imposing the death penalty – State must equally place all material and circumstances on the record bearing on the probability of reform – Many such materials and aspects are within the knowledge of the State which has had custody of the accused both before and after the conviction – Moreover, the court cannot be an indifferent bystander in the process – 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.
Capital punishment – Aggravating circumstances – Consideration of, while deciding upon the sentence – Held: Sex of the child cannot be in itself considered as an aggravating circumstance – Murder of a young child is a grievous crime and the young age of the victim as well as the trauma caused to the entire family is in itself, an aggravating circumstance – It does not and should not matter for a constitutional court whether the young child was a male child or a female child – Courts should 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 judgments that courts should avoid.
Evidence Act, 1972 : s. 65 B – Electronic evidence in the form of Call detail records-CDRs – Production of a certificate u/s.65 B, if mandatory for admitting any electronic evidence – Held: s. 65B certificate is mandatory – On facts, the review petition to be considered eschewing the electronic evidence in the form of CDRs as they are without the appropriate certificate u/s. 65B.
Contempt of Court : Non-disclosure of material facts – Petitioner-convict tried to escape from prison – Inspector of Police in the affidavit filed, materially withheld information regarding conduct of the petitioner in the prison from the Court – Thus, initiation of Suo Motu contempt proceedings against the convict. Disposing of the review petitions, the Court
HELD: 1.1 The evidence in the form of CDRs-Call Detail Record was merely to corroborate the evidence that had been given through the depositions of PW1 and PW8. Both of their testimonies stand corroborated not only through the CDRs but also through the recovery of the mobile phone on the basis of the confessional statement of the petitioner. Even if Ex. P5, being the CDR, is not relied upon by this Court, the case of the prosecution is not weakened as it merely corroborates the documentary evidence and witness testimonies that remain unblemished regardless. In view thereof, it is clear that there is no reason to doubt the guilt of the petitioner. Therefore, even though none of the grounds raised by the petitioner amount to errors apparent on the face of the record, in view of thereof, it can also be conclusively said that all the grounds on merits fail to raise any reasonable doubt in the prosecution’s case. There is 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. [Para 52-54][1048-E-F; 1049-F-H]
1.2 The counsel for the petitioner submitted that the sentence of death cannot be imposed in such cases where the conviction is based on circumstantial evidence as a ‘lingering doubt’ regarding the guilt of the accused persists. The argument of residual or lingering doubt does not come to the rescue of the petitioner. [Para 57, 59][1050-C-D]
1.3 This Court has already applied the relevant standard to confirm the guilt of the petitioner in the appeal in a case which is based on circumstantial evidence and it will not be appropriate for this Court to once again venture into an assessment of the evidence in the review jurisdiction in view of its limited scope. [Para 60][1051-F-G]
1.4 In the instant case, the judgment of the trial court dealing with sentencing indicates that a meaningful, real and effective hearing was not afforded to the petitioner. The trial court did not conduct any separate hearing on sentencing and did not take into account any mitigating circumstances pertaining to the petitioner before awarding the death penalty. The High Court took into account the gruesome and merciless nature of the act. It reiterated the precedents stating that the death penalty is to be awarded only in the rarest of rare cases. However, it did not specifically look at any mitigating circumstances bearing on the petitioner. This Court examined the aggravating circumstances of the crime in detail. The above sequence indicates that 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. [Para 7074][1056-B-C, F-G; 1057-A,D]
1.5 In terms of the aggravating circumstances that were taken note of by this Court in appeal, the attention has been drawn to certain circumstance. It is noted that the sex of the child cannot be in itself considered as an aggravating circumstance by a constitutional court. The murder of a young child is unquestionably a grievous crime and the young age of such a victim as well as the trauma that it causes for the entire family is 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. [Para 75][1057-E, H; 1058-A-C]
1.6 No inquiry was conducted for enabling a consideration of the factors mentioned in case of the petitioner. Neither the trial court, nor the appellate courts have looked into any factors to conclusively state that the petitioner cannot be reformed or rehabilitated. The Courts have reiterated the gruesome nature of crime to award the death penalty. In appeal, this Court merely noted that the counsel for the petitioner could not point towards mitigating circumstances and upheld the death penalty. The state must equally place all material and circumstances on the record bearing on the probability of reform. Many such materials and aspects are within the knowledge of the state which has had custody of the accused both before and after the conviction. Moreover, 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. [Para 79][1061-D-F]
1.7 The duty of the court to enquire into mitigating circumstances as well as to foreclose the possibility of reformation and rehabilitation before imposing the death penalty has been highlighted in multiple judgments of this Court. Despite this, in the present case, no such enquiry was conducted and the grievous nature of the crime was the only factor that was considered while awarding the death penalty. [Para 81][1062-H; 1063-A]
1.8 The fact remains that no mitigating circumstances were placed before any of the appellate courts. It cannot be said that there is no possibility of reformation even though the petitioner has committed a ghastly crime. The mitigating factors that the petitioner has no prior antecedents, was 23 years old when he committed the crime and has been in prison since 2009 where his conduct has been satisfactory, except for the attempt to escape prison in 2013; that the petitioner is suffering from a case of systemic hypertension and has attempted to acquire some basic education in the form of a diploma in food catering; that the acquisition of a vocation in jail has an important bearing on his ability to lead a gainful life, must be considered. Considering the above factors, even 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. However, the Court is also aware that a sentence of life imprisonment is subject to remission. This would not be adequate in view of the gruesome crime committed by the petitioner. [Para 88-90][1064-E-H; 1065A]
1.9 There is no reason to doubt the guilt of the petitioner in kidnapping and murdering the victim. The exercise of the jurisdiction in review to interfere with the conviction is not warranted. However, the Court does take note of the arguments regarding the sentencing hearing not having been conducted separately in the trial court and mitigating circumstances having not been considered in the appellate courts before awarding the capital punishment to the petitioner. While weighing this argument, the gruesome nature of the crime of murder of a young child of merely 7 years of age has also weighed upon the Court and the Court does not find that a sentence of life imprisonment, which normally works out to a term of 14 years, would be proportionate in the circumstances. Accordingly, the death sentence imposed upon the petitioner is commuted to life imprisonment for not less than twenty years without reprieve or remission. [Para 93, 94][1066-B-E]
1.10 Separately, a notice is required to be issued to the Inspector of Police, Kammapuram Police Station, Cuddalore District, State of Tamil Nadu to offer an explanation as to why action should not be taken for the filing of the affidavit dated 26 September 2021. In this case, prima facie, material information regarding the conduct of the petitioner in the prison was concealed from this Court. Accordingly, the Registry is directed to register the matter as a suo motu proceeding for contempt of court. [Para 95][1066-F]
Mohd. Arif alias Ashfaq v Registrar, Supreme Court of India 2014 (9) SCC 737 : [2014] 11 SCR 1009 – followed
Mofil Khan v State of Jharkhand 2021 SCC OnLineSC 1136; Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal 2020 (7) SCC 1; Anvar P.V. v P.K. Basheer 2014 (10) SCC 473 : [2014] 11 SCR 399; State (NCT of Delhi) v Navjot Sandhu 2005 (11) SCC 600 : [2005]
2 Suppl. SCR 79; Tomaso Bruno v State of Uttar Pradesh 2015 (7) SCC 178 : [2015] 1 SCR 721; Shafi Mohammed v State of Himachal Pradesh 2018 (2) SCC 801; Sonu alias Amar v State of Haryana 2017 (8) SCC
570 : [2017] 8 SCR 151; Mohd. Arif v State (NCT of Delhi) 2022 SCC OnLine SC 1509; Shatrughna Baban Meshram v State of Maharashtra 2021 (1) SCC 596; Santa Singh v State of Punjab 1976 (4) SCC 190 : [1977] 1 SCR 229; Bachan Singh v State of Punjab 1980 (2) SCC 684; Muniappan v State of Tamil Nadu 1981 (3) SCC 11 : [1981] 3 SCR 270; Allauddin Mian v State of Bihar 1989 (3) SCC 5 : [1989] 2 SCR 498; Anguswamy v State of Tamil Nadu 1989 (3) SCC 33; Malkiat Singh v State of Punjab 1991 (4) SCC 341 : [1991] 2 SCR 256; Dattaraya v State of Maharashtra 2020 (14) SCC 290 : [2019] 11 SCR 295; Dagdu v State of Maharashtra 1977 (3) SCC 68 : [1977] 3 SCR 636; Tarlok Singh v State of Punjab 1977 (3) SCC 218 : [1977] 3 SCR 711; Ramdeo Chauhan v State of Assam 2001 (5) SCC 714 : [2001] 3 SCR 669; In re: Framing Guidelines Regarding Potential Mitigating
Circumstances to be Considered while Imposing Death Sentences Suo Motu W.P. (Crl.) No. 1/2022; Rajendra Pralhadrao Wasnik v State of Maharashtra 2019 (12) SCC 460 : [2018] 14 SCR 585; Santosh Kumar
Satishbhushan Bariyar v State of Maharashtra 2009
(6) SCC 498 : [2009] 9 SCR 90; Anil v State of Maharashtra 2014 (4) SCC 69 : [2014] 3 SCR 34; Swamy Shraddananda (2) @ Murali Manohar Mishra v State of Karnataka 2008 (13) SCC 767 – referred to.
Exercise of Review Jurisdiction in Capital Cases in DEATH PENALTY AND THE INDIAN SUPREME
COURT (2007–2021), Project 39A, National Law
University Delhi (2022) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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