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SUPREME COURT OF INDIA
Madan B. Lokur, S. Abdul Nazeer, Deepak Gupta, JJ.
RAJENDRA PRALHADRAO WASNIK – Appellant
Versus
STATE OF MAHARASHTRA – Respondent
Review Petition (Criminal) Nos. 306-307 of 2013 in Criminal Appeal Nos. 145-146 of 2011
Decided on : 12-12-2018
(1980) 2 SCC 684 – Relied upon
(b) Criminal jurisprudence – Death sentence – Dismissal of appeal and review petition – Death sentence not executed – Convict can apply for reopening the review petition within one month from the date of the decision in (2014) 9 SCC 737 – Instantly curative petition not filed – Review petitions restored – Article 137, Constitution of India. (Para 14)
(2014) 9 SCC 737 – Relied upon
© Criminal trial – Circumstantial evidence – Death sentence – Ordinarily capital punishment not advisable in a case of circumstantial evidence, though there is no bar – In case of doubt on circumstantial evidence court should acquit the accused – If there is no doubt, conviction must follow – Death penalty can be awarded in case of some exceptional circumstances keeping in mind not only the crime, but also the criminal and whether any alternative option of punishment is unquestionably foreclosed. (Para 29)
(1980) 2 SCC 684; (2014) 9 SCC 737; (2007) 11 SCC 467; (2007) 12 SCC 230; (2008) 13 SCC 767; (2009) 6 SCC 498; (2010) 1 SCC 58; (2011) 3 SCC 685; (2014) 4 SCC 317; (2015) 16 SCC 492 – Relied upon
(2008) 15 SCC 269; 2008 ALL MR (Cri) 2143; (2013) 5 SCC 546; (2002) 1 SCC 622; (2000)1 SCC 471; (2005) 10 SCC 597; (2012) 4 SCC 37; (2007) 12 SCC 288 – Referred
(1994) 3 SCC 381; (1994) 2 SCC 220; (1999) 9 SCC 581 – Distinguished
(d) Sentencing – Death sentence – Probability of reform and rehabilitation – An important circumstance – One of the mandates of the "special reasons" requirement of Section 354(3), Code of Criminal procedure, 1973 – State has to prove by evidence that convict is not capable of being reformed and rehabilitated, therefore death sentence should be awarded – Probability to be assessed on basis of conduct of the convict in and outside jail when on bail, medical evidence about his mental make-up etc – Directing imprisonment for a period greater than 14 years (say 20 or 25 years) could be an alternative option to capital punishment. (Para 31, 45, 48)
(1980) 2 SCC 684; (2002) 2 SCC 35; (2002) 3 SCC 76; (2009) 6 SCC 498; (2011) 3 SCC 685; (2013) 2 SCC 479; (2013) 3 SCC 294; (2014) 3 SCC 421; (2014) 4 SCC 69; (2014) 4 SCC 292; (2014) 4 SCC 317; Criminal Appeal Nos. 1482-1483 of 2018 – Relied upon
(2013) 2 SCC 452 – Referred
(e) Code of Criminal Procedure, 1973 – Section 53-A(2) r/w section 164-A – Medical examination of accused – Not mandatory but requires a positive decision to be taken – On reasonable ground that medical examination would evidence as to the commission of an offence of rape or an attempt to commit rape – Medical examination includes DNA profiling of the accused – Advantage must be availed of technological advancements – Consent of accused however necessary – In absence of DNA profiling an adverse consequence would follow for the prosecution – Instantly sample from accused taken DNA profiling done but report not produced before court – It would be dangerous to uphold the sentence of death on the appellant. (Para 49, 50, 52, 54, 56, 57)
(2011) 7 SCC 130; (2014) 5 SCC 108; (2017) 6 SCC 1; (2010) 7 SCC 263 – Relied upon
(f) Indian Evidence Act, 1872 – Sections 54 – Antecedents of a convict are not relevant for the purposes of awarding a sentence, unless the convict gives evidence of his good character. (Para 59, 64)
(g) Criminal jurisprudence – Sentencing – Mere pendency of one or more criminal cases against a convict cannot be a factor for consideration for awarding a sentence – Such course is statutorily impermissible (except in some cases) – Even otherwise it violates the human right of accused, fundamental presumption of innocence – Sections 54, Indian Evidence Act, 1872 . (Para 73)
(2010) 14 SCC 641; (2001) 9 SCC 615; (2003) 8 SCC 93; (2005) 10 SCC 322; (2005) 3 SCC 127 – Relied upon
[1982] 2 SCR 47; (1997) 6 NTLR 194 – Referred
(2009) 15 SCC 635 – Not a good law
(h) Criminal jurisprudence – Sentencing – Two cases under trial against same accused on similar offences – Instantly trial court considered pendency of the other trial as a circumstance against accused – Observed, since accused could be awarded a minimum sentence of life imprisonment, trial court ought to wait for outcome of the other case – There was no hurry – Courts must "make assurance double sure". (Para 74, 76)
(i) Code of Criminal Procedure, 1973 – Section 439 – Appellant facing four trials for offences of rape and murder – Despite this antecedent granted bail – Shocking. (Para 78)
(j) Criminal jurisprudence – Sentencing – No material on record on probability of reformation/rehabilitation of convict – His involvement in four similar offences and his subsequent conduct – Sentence of death commuted to imprisonment rest of his normal life. (Para 79, 80)
Facts of the case:
The appellant is convicted for the rape and murder of a girl aged 3 years. The trial court awarded the sentence of death to the appellant.
Conviction was upheld and capital punishment awarded to the appellant was confirmed by the High Court.
Review petitions were dismissed. However any curative petition was not filed.
In the meantime a Constitution Bench, in (2014) 9 SCC 737, held that where review petitions as against death sentence were dismissed can be reopened if the convict makes an application before execution or dismissal of curative petition.
Hence this case.
Finding of the Court:
Sentence of death commuted into imprisonment for rest of normal life.
Result: Appeals disposed of.
The legal document discusses the principles and considerations involved in sentencing, particularly in cases involving capital punishment. It emphasizes that the probability of reform and rehabilitation of the accused is a significant factor in determining the appropriate sentence (!) (!) . Courts are obliged to assess whether the convict is capable of being reformed and rehabilitated based on conduct in and outside of jail, medical evidence, and other relevant factors (!) (!) .
The document clarifies that the antecedents or criminal history of a convict are not relevant for sentencing unless the convict provides evidence of good character (!) . The mere pendency of criminal cases against an individual cannot be used as a factor to justify harsher punishment, as it violates the presumption of innocence and is statutorily impermissible (!) (!) .
In cases where circumstantial evidence forms the basis for conviction, the awarding of death penalty is generally approached with caution. Such cases require exceptional circumstances to justify capital punishment, and the evidence must lead to a clear and certain conclusion of guilt (!) (!) (!) . The courts are advised to consider whether there is any doubt about the guilt, and if so, acquittal should be the course. If guilt is established beyond doubt, the court must evaluate whether the case qualifies as one of the "rarest of rare" cases to warrant the death penalty (!) (!) .
The importance of scientific evidence, especially DNA profiling, is highlighted. The courts are encouraged to utilize technological advancements fully, and the failure to produce DNA evidence without justification can adversely affect the case against the accused (!) (!) . The evidence obtained through DNA testing is recognized as highly accurate and crucial in establishing guilt or innocence (!) .
Regarding the prior history of the convict, the document states that it is generally not relevant unless the convict offers evidence of good character (!) . However, specific statutory provisions may impose enhanced penalties for repeat offenders, which must be proven through conviction records (!) .
In terms of sentencing, the document underscores that death should be reserved for the rarest of rare cases, and alternative sentences like life imprisonment should be considered, especially when there is a possibility of reform and rehabilitation. The courts are directed to carefully evaluate whether the convict can be reformed, based on evidence and conduct, before imposing the death penalty (!) (!) (!) .
Overall, the principles laid down advocate for a balanced and humane approach to sentencing, taking into account the nature of the crime, the criminal's potential for reform, and the use of scientific evidence, while respecting the presumption of innocence and the need for exceptional circumstances to justify capital punishment.
JUDGMENT
Madan B. Lokur, J -.
'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 R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011socially reintegrate into society even a hardened criminal along with those representing the victims of the crime.
2. 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.
Background
3. 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
4. With regard to the sentence to be awarded, the Trial Judge heard the prosecution and the appellant on 6th September, 2008 and again on 8th September, 2008 on which date he passed a preliminary order. The submissions of the Public Prosecutor as well as the learned counsel for the defence were heard on that date and reference was made to a decision of this Court in Shivaji alias Dadya Shankar Alhat vs. State of Maharashtra, (2008) 15 SCC 269. In the decision rendered by this Court it was observed in paragraph 27 of the Report as follows:
"27. The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to do with the question of sentence as has been observed by this Court in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced. In the balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has no role to play. In fact in most of the cases where death sentences are awarded for rape and murder and the like, there is practically no scope for having an eyewitness. They are not committed in the public view. But the very nature of things in such cases, the available evidence is circumstantial evidence. If the said evidence has been found to be credible, cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating circumstance, would amount to consideration of an irrelevant aspect. The plea of the learned amicus curiae that the conviction is based on circumstantial evidence and, therefore, the death sentence should not be awarded is clearly unsustainable."
(Emphasis supplied by us).
Therea
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