Supreme Court’s Recent Observations On Criminals And Death Penalty
It has to be stated right at the outset that in a landmark judgment titled Rajendra Pralhadrao Wasnik v State of Maharashtra in Review Petition (Criminal) Nos. 306-307 of 2013 in Criminal Appeal Nos. 145-146 of 2011 delivered on December 12, 2018 which is certainly going to be a trendsetter in the time to come, a three Judge Bench of the Supreme Court comprising of Justice Madan B Lokur while authoring this landmark judgment for himself, Justice S Abdul Nazeer and Justice Deepak Gupta clearly and convincingly held that criminals are also entitled to life of dignity and probability of reformation/rehabilitation to be seriously and earnestly considered before awarding death sentence. We thus see that pertinent issues are discussed on ‘sentencing’ which shall be discussed indepth now in the coming paragraphs. It will help us better understand and appreciate the intricacies of law!
To be sure, this landmark and laudable judgment begins at the outset by first and foremost stating explicitly in para 1 that, “ ‘Sentenced to death’ – these few words would have a chilling effect on anyone, including a hardened criminal. Our society demands such a sentence on grounds of its deterrent effect, although there is no conclusive study on its deterrent impact. Our society also demands death sentence as retribution for a ghastly crime having been committed, although again there is no conclusive study whether retribution by itself satisfies society. On the other hand, there are views that suggest that punishment for a crime must be looked at with a more humanitarian lens and the causes for driving a person to commit a heinous crime must be explored. There is also a view that it must be determined whether it is possible to reform, rehabilitate and socially reintegrate into society even a hardened criminal along with those representing the victims of the crime.” Absolutely right! What wrong has the top court said? Nothing wrong!
While buttressing its stand as spelt out in para 1 and going ahead, it is then observed in para 2 that, “These conflicting views make it very difficult for courts to take a decision and without expert evidence on the subject, courts are ill-equipped to form an objective opinion. But, a Constitution Bench of this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684 has thrown its weight behind a humanitarian approach and mandated consideration of the probability of reform or rehabilitation of the criminal and required the prosecution to prove that it was not possible for the convict to be reformed or rehabilitated. However, the Constitution Bench left open a corridor of uncertainty thereby permitting, in the rarest of rare cases, the pronouncement of a sentence of death. It is this paradigm that confronts us in these petitions.”
Going forward, para 3 then elucidates the background of this landmark case. It says that, “The appellant is convicted for the rape and murder of a girl aged 3 years. The offence was committed in the intervening night of 2nd and 3rd March, 2007. On the basis of circumstantial evidence led by the prosecution, the appellant was found guilty of and convicted for offences punishable under Sections 376(2)(f), 377 and 302 of the Indian Penal Code (IPC) by the Sessions Judge, Amravati in Sessions Trial No. 183 of 2007 by a judgment dated 6th September, 2008.”
Needless to say, it is then primarily pointed out in para 4 that, “With regard to the sentence to be awarded, the Trial Judge heard the prosecution and the appellant on 6th September, 2008 and again on 6th September, 2008 and again on 8th September, 2008 on which date he passed a preliminary order. Thereafter, the learned Sessions Judge passed an order on 10th September, 2008 awarding the sentence of death to the appellant.” Para 6 then brings out that, “On an overall view of the circumstances of the case, the Sessions Judge concluded that any alternative option of punishment is unquestionably foreclosed and therefore the only sentence that could be awarded to the appellant is of capital punishment.”
Be it noted, para 7 then further goes on to mention that, “The appellant preferred an appeal against his conviction and sentence before the Bombay High Court being Criminal Appeal No. 700 of 2008. This was heard along with Criminal Confirmation Case No. 3 of 2008. Both these were taken up for consideration and the conviction was upheld and capital punishment awarded to the appellant was confirmed by the High Court by a judgment and order dated 26th March, 2009.”
It cannot be lost on us that it is then very rightly pointed out in para 29 that, “The result of the above discussion is that ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence. But there is no hard and fast rule that death sentence should not be awarded in a case of circumstantial evidence. The precautions that must be taken by all the courts in cases of circumstantial evidence is this: if the court has some doubt, on the circumstantial evidence on record, that the accused might not have committed the offence, then a case for acquittal would be made out; if the court has no doubt, on the circumstantial evidence, that the accused is guilty, then of course a conviction must follow. If the court is inclined to award the death penalty then there must be some exceptional circumstances warranting the imposition of the extreme penalty. Even in such cases, the court must follow the dictum laid down in Bachan Singh that it is not only the crime, but also the criminal that must be kept in mind and any alternative option of punishment is unquestionably foreclosed. The reason for the second precaution is that the death sentence upon execution, is irrevocable and irretrievable.”
No doubt, it is also then elegantly pointed out in para 30 that, “Insofar as the present case is concerned, learned counsel for the appellant did not lay much stress on commuting the death sentence to one of life imprisonment only on the basis of the circumstantial evidence on record. Therefore, we need not examine the nature of the crime and other factors or detain ourselves in this regard. We have referred to the various decisions cited by learned counsel only for completeness of the record and to reaffirm the view that ordinarily death sentence should not be awarded in a conviction based on circumstantial evidence.”
Reform, rehabilitation and re-integration into society
Simply put, it is then underscored in para 31 that, “The discussion on the reform or rehabilitation of a convict begins with the acknowledgement in Bachan Singh that the probability that a convict can be reformed and rehabilitated is a valid consideration for deciding whether he should be awarded capital punishment or life imprisonment. This Court has also accepted the view that it is for the State to prove by evidence that the convict is not capable of being reformed and rehabilitated and should, therefore, be awarded the death sentence.” It is then acknowledged in para 32 that, “This view has been accepted universally in all the decisions that were cited before us by learned counsel for the appellant.”
Truth be told, para 45 then makes it abundantly clear that, “The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the “special reasons” requirement of Section 354(3) of the Cr.P.C. and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well.”
Having said this, it is then very rightly brought out in para 47 that, “Consideration of the reformation, rehabilitation and re-integration of the convict into society cannot be over-emphasised. Until Bachan Singh, the emphasis given by the courts was primarily on the nature of the crime, its brutality and severity. Bachan Singh placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict. Despite the view expressed by the Constitution Bench, there have been several instances, some of which have been pointed out in Bariyar and in Sangeet v. State of Haryana (2013) 2 SCC 452 where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner. As observed in Sangeet “In the sentencing process, both the crime and the criminal are equally important.” Therefore, we should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore, it is for the prosecution and the courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social re-integration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social re-integration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible.”
Continuing in the same vein, para 48 then states clearly that, “In other words, directing imprisonment for a period greater than 14 years (say 20 or 25 years) could unquestionably foreclose the imposition of a sentence of death, being an alternative option to capital punishment.” Very rightly so! There can be no denying it!
For esteemed readers exclusive indulgence, it would be imperative to now mention what para 73 says. It explicitly states that, “It is therefore quite clear from the various decisions placed before us that the mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding a sentence. Not only is it statutorily impermissible (except in some cases) but even otherwise it violates the fundamental presumption of innocence – a human right – that everyone is entitled to.”
As it turned out, we see that it is then observed in para 74 that, “Insofar as the present case is concerned, it has come on record that there are two cases pending against the appellant for similar offences. Both these were pending trial. Notwithstanding this, the Trial Judge took this into account as a circumstance against the appellant. It would have been, in our opinion, far more appropriate for the Sessions Judge to have waited, if he thought it necessary to take the pendency of these cases into consideration, for the trials to be concluded. For ought we know, the two cases might have been foisted upon the appellant and he might have otherwise been proved not guilty.”
Quite remarkably, it is then elucidated in para 75 that, “We may generally mention, in conclusion, that there is really no reason for the Trial Judge to be in haste in awarding a sentence in a case where he might be considering death penalty on the ground that any other alternative option is unquestionably foreclosed. The convict would in any case remain in custody for a fairly long time since the minimum punishment awarded would be imprisonment for life. Therefore, a Trial Judge can take his time and sentence the convict after giving adequate opportunity for the prosecution as well as for the defence to produce material as postulated in Bachan Singh so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence. It must be appreciated that a sentence of death should be awarded only in rarest of rare cases, only if an alternative option is unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death is irrevocable and irretrievable upon execution. It should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is concerned. In other words, courts must “make assurance double sure.” [Shakespeare’s Macbeth, Act IV, Scene I]”
Finally and most importantly, let us now discuss the concluding paras. Para 79 stipulates that, “Insofar as the present petition is concerned, the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social re-integration of the appellant into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case. The prosecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the appellant for the purpose of sentencing. The Trial Court was also in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, consider. However, we also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant.” Lastly, para 80 then concludes by holding that, “For all these reasons, we are of opinion that it would be more appropriate looking to the crimes committed by the appellant and the material on record including his overall personality and subsequent events, to commute the sentence of death awarded to the appellant but direct that he should not be released from custody for the rest of his normal life. We order accordingly.”
All said and done, it is a very progressive and humane judgment which accords the highest priority to even the right of criminal to lead a life of dignity and respect. It also lays down that the probability of reformation/rehabilitation to be seriously and earnestly considered before awarding death sentence. It is very rightly held that, “A trial Judge can take his time and sentence the convict after giving adequate opportunity for the prosecution as well as for the defence to produce material as postulated in Bachan Singh so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence.”
The Apex Court also commendably said that there were views that punishment for a crime must be looked at with a more humanitarian lens and the causes for driving a person to commit a heinous crime must be explored and that it must be determined whether it is possible to reform, rehabilitate and socially reintegrate into society even a hardened criminal along with those representing the victims of the crime. Absolutely right! There can be no denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh