1. Kidnapping, rape, and murder of two children — Conviction under Sections 302, 376, and 201, IPC — Review petition against confirmation of death sentence. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 )
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2019 Supreme(SC) 1239
SUPREME COURT OF INDIA
ROHINTON FALI NARIMAN, SURYA KANT, SANJIV KHANNA JJ.
Manoharan – Petitioner(s)
VERSUS
State by Inspector of Police, Variety Hall Police Station, Coimbatore – Respondent(s)
Review Petition (Crl.) Nos. 446-447 OF 2019 In Criminal Appeal Nos. 1174-1175 OF 2019
Decided On : 07-11-2019
Advocates Appeared:
For the Petitioner(s):Sidharth Luthra, Revathy Raghavan, S. Muthukrishnan, Aayushi Sharma, Shubhangni Jain, Advocates
For the Respondent(s):M. Yogesh Kanna, Advocate
For the Petitioner(s):Sidharth Luthra, Revathy Raghavan, S. Muthukrishnan, Aayushi Sharma, Shubhangni Jain, Advocates
For the Respondent(s):M. Yogesh Kanna, Advocate
Important Points
IMPORTANT POINTS
Review can only be on a glaring error apparent on the face of the judgment or order. A mere change or addition of grounds cannot be allowed at the stage of review.
Confessional statement can still be relied upon despite retraction, if corroborated by evidence.
Inadequacy of legal representation, if not prejudicing the accused, has no effect on sentencing.
Section 164 CrPC Does not contemplate recording of a confession or statement in presence of advocate(s) except when such confessional statement is recorded with audio-video electronic means.
Issues not raised at any stage before cannot be raised in review.
Opinion of the society and not the personal opinion of the judge should be considered whilst awarding sentence of death.
Dissenting opinions have little precedential value.
Circumstantial evidence is no bar to award death sentence.
Exculpatory parts in a belated retraction of confessional statement ought to be excluded.
Mere young age and presence of aged parents cannot be grounds for commutation.
Review can only be on a glaring error apparent on the face of the judgment or order. A mere change or addition of grounds cannot be allowed at the stage of review.
Confessional statement can still be relied upon despite retraction, if corroborated by evidence.
Inadequacy of legal representation, if not prejudicing the accused, has no effect on sentencing.
Section 164 CrPC Does not contemplate recording of a confession or statement in presence of advocate(s) except when such confessional statement is recorded with audio-video electronic means.
Issues not raised at any stage before cannot be raised in review.
Opinion of the society and not the personal opinion of the judge should be considered whilst awarding sentence of death.
Dissenting opinions have little precedential value.
Circumstantial evidence is no bar to award death sentence.
Exculpatory parts in a belated retraction of confessional statement ought to be excluded.
Mere young age and presence of aged parents cannot be grounds for commutation.
Subject
Criminal Law - Homicide and Sexual Offences
Act Referred
Headnote
(a) Constitution of India - Article 137 r/w Rule XL(1), Supreme Court Rules - Review - Review can only be on a glaring error apparent on the face of the judgment or order - A mere change or addition of grounds cannot be allowed at the stage of review - A party cannot be allowed to reurge the case on merits to effectively seek re-appreciation of evidence when the matter has already been decided earlier, even if on different grounds. (Para 18, 20)
(b) Criminal trial - Confessional statement - Voluntariness and effect of retraction - Section 164, Code of Criminal Procedure, 1973 - Procedural safeguards - Instantly Magistrate complying with all procedural safeguards and satisfying himself about voluntariness of the confession - Petitioner not putting forth any protest against the confessional statement despite having multiple opportunities during the course of trial - Petitioner partly disputing the statement through a secret letter written just before his examination u/s 313 CrPC - Such retraction at the fag-end of the trial, not natural - Confessional statement can still be relied upon despite retraction, if corroborated by evidence - Admissions made by petitioner in his retraction read with prosecution evidence, sufficient for his conviction. (Para 26, 27, 28, 29, 30)
(c) Indian Evidence Act, 1872 - Section 106 - Sufficient inculpatory admissions in petitioner’s retraction - Places strong burden of proof on him. (Para 31)
(d) Constitution of India - Article 137 - Review sought on the ground that the Court decided the appeal without independently re-appreciating all the material on record - Factually incorrect. (Para 33)
(e) Constitution of India - Article 21 - Legal representation of accused - Alleged inadequacy - Petitioner failing to show that the assistance of the counsel was deficient per an objective standard of reasonableness - As also that such deficiency has affected the outcome of the case - Held cannot complain of inadequacy of legal assistance - Moreover alleged inadequacy has not prejudiced the petitioner. (Para 37, 39)
(f) Code of Criminal Procedure, 1973 - Section 164 - Does not contemplate recording of a confession or statement in presence of advocate(s) - Except, when such confessional statement is recorded with audio-video electronic means. (Para 41)
(g) Constitution of India - Article 137 - Issues not raised at any stage before - Cannot be raised in review. (Para 49)
(h) Indian Penal Code, 1860 - Section 376 - Medical evidence on deceased girl and the petitioner - Establishing sexual assault by petitioner - Conviction u/s 376 justified. (Para 55)
(i) Criminal jurisprudence - Sentencing - Opinion of the society and not the personal opinion of the judge should be considered whilst awarding sentence of death - A change in law during pendency of the case is an apt indicator of societal opinion as legislated by elected representatives. (Para 57, 67)
(j) Jurisprudence - Precedents - Interpretation of judgments - Minority view - Dissenting opinions have little precedential value - Contention that death sentence should not be awarded even if one Judge differs, rejected. (Para 60)
(k) Indian Penal Code, 1860 - Section 302 - Death sentence - Circumstantial evidence - No bar to award death sentence owing to recent developments in medical science and the possibility of abuse by seasoned criminals. (Para 62)
(l) Code of Criminal Procedure, 1973 - Section 164 - Confessional statement - Belated retraction - Exculpatory parts ought to be excluded. (Para 64)
Criminal jurisprudence - Death sentence - Commutation - Mere young age and presence of aged parents cannot be grounds for commutation. (Para 65)
Facts of the case:
These review petitions are directed against the judgment dated 01.08.2019 passed in Manoharan v. State by Inspector of Police, (2019) 7 SCC 716 wherein this three-Judge Bench had affirmed conviction of the accused Manoharan for offences punishable under Sections 302, 376(2)(f) and (g) and 201 of the Indian Penal Code and by majority upheld the death sentence confirmed by the High Court.
The appellant was convicted u/s 364(A), 376, 302 read with Section 201, IPC for abduction and rape of two minor children. He was sentenced to death, which has been confirmed up to Supreme Court.
Finding of the Court :
Present offence(s) of the Petitioner are so grave as to shock the conscience of this Court and of society and would without doubt amount to rarest of the rare.
Result: Petition dismissed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
- constitutional law
Table of Contents
2. Challenge to voluntariness of confession — Inadequacy of legal representation — Discrepancies in evidence recovery — Wrongful conviction under Section 376, IPC — Plea for commutation of death sentence. (Para 21 , 22 , 33 , 35 , 42 , 44 , 49 , 50 , 56 , 58 )
3. Confession was voluntary and corroborated — DNA and medical evidence establish rape and murder — Legal representation was adequate — Crime's brutality justifies the rarest of rare classification. (Para 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 36 , 37 , 38 , 39 , 40 , 41 , 43 , 44 , 45 , 46 , 47 , 48 , 50 , 51 , 52 , 53 , 54 , 55 , 57 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 )
4. Review jurisdiction is limited to glaring errors apparent on the record — Retracted confessions are admissible if corroborated — Death penalty is warranted for crimes shocking societal conscience. (Para 18 , 19 , 20 , 23 , 29 , 67 )
5. Review petitions dismissed — Conviction and death sentence upheld. (Para 68 )
6. What is the scope of review jurisdiction in death penalty cases?
Review is limited to glaring errors apparent on the face of the record or the discovery of important new evidence causing manifest injustice. It cannot be used to re-argue merits or re-appreciate evidence. (Para 18 , 19 , 20 )
7. Under what conditions can a retracted confession be used for conviction?
A retracted confession may form the legal basis of a conviction if the court is satisfied it was voluntary and true, typically requiring corroboration in material particulars as a rule of prudence. (Para 23 , 24 , 29 )
8. What standard is used to determine if legal representation was inadequate under Article 21?
The accused must demonstrate that the assistance of counsel was deficient per an objective standard of reasonableness and that such deficiency had a reasonable probability of affecting the outcome of the case. (Para 37 , 38 , 39 )
9. Does a dissenting opinion on the quantum of sentence in a majority decision necessitate commutation of the death penalty?
No. Dissenting opinions have little precedential value, and there is no difference in operation between decisions rendered unanimously or those tendered by majority, albeit with minority dissenting views. (Para 59 , 60 )
10. Can changes in law after the date of offense be considered when determining the death penalty?
Yes, if used as an indicator of societal opinion to determine if a case is the rarest of rare, provided the accused is not convicted of an offense not punishable by death at the time of commission. (Para 57 )
JUDGMENT
SURYA KANT, J.
These review petitions are directed against the judgment dated 01.08.2019 passed in Manoharan v. State by Inspector of Police, (2019) 7 SCC 716 wherein this three-Judge Bench had affirmed conviction of the accused Manoharan for offences punishable under Sections 302, 376(2)(f) and (g) and 201 of the Indian Penal Code (in short “IPC”) and by majority upheld the death sentence confirmed by the High Court.
FACTUAL MATRIX
2. Brief facts of the present case are as follows:
‘X’, a ten-year-old girl and ‘Y’, her 7-year-old brother were enrolled in Classes V and II respectively in a private school at Coimbatore and would commute around 7:45 a.m. in a pickup vehicle owned by one Kartikeyan (PW-2). On 29.10.2010 the children left as usual with their school bags and lunch boxes and stood about two-hundred feet away from their home, in front of the Vinayakar Temple. Around 8:00 a.m., PW-2 came to the designated pick-up spot but did not find the children there. He contacted the children’s father, Ranjith Kumar Jain (PW-5), over mobile to enquire about their absence. Being in Hyderabad, PW-5 was unable to provide an immediate reply to the query of PW-2 and hence called his wife, the children’s mother -Sangeetha (PW-8), who informed him that both X and Y had already left home. Since the father of the children (PW-5) was already on his way back to Coimbatore, he entrusted his wife to look out for the children and co-ordinate with the van driver. Sangeetha informed Karthikeyan that the children had already left the house, whereafter she along with her relatives Vijay Kumar (PW-1) and Sanjai (PW-6) started searching for the children.
3. Kamala Bai (PW-9), the paternal grandmother of the children had gone to a Jain Temple around 8:00 a.m. in the morning. Upon returning home at 10:30 a.m. and finding Sangeetha in panic, Kamala Bai informed her that the children had been picked up by a former van driver and it was conjectured that the children must be in school. Vijay Kumar (PW-1) then went to the school and found that the children had however not reached. After a frantic but futile search, PW-1 lodged a police complaint (Ex. P1) with Vasuki (Sub-Inspector of Police, PW-42) at around 11AM under Section 363 of the Indian Penal Code (in short “IPC”).
4. The Investigating Officer (“IO”, PW-47), thereafter, took over investigation and recorded statements of the informant (PW-1), the school’s principal -Anthony Raj (PW-10), as well as of the grandmother (PW-9) and the just returned father of the children (PW-5). First trace of the missing children was received at 6PM when Anthony Raj (PW-10) informed the IO (PW-47) that one Chinnasamy (PW-22) had called to inform that two school bags with identity cards bearing names of X and Y were found floating in and later fished out from the Parambikulam-Axhiyar Project (“PAP”) Canal. A second lead came to the Police from Karthikeyan (PW-2) who received a call from his erstwhile employee – Anbu @ Gandhiraj (PW-7) who conveyed that one Mohanakrishnan had borrowed a Maruti Omni Van from him that morning. This aroused Karthikeyan’s suspicion since Mohanakrishnan was his former employee whose services were terminated after it had been discovered that he was borrowing money from the parents whose children were being transported to school by PW-2’s agency. The IO (PW-47) accordingly advised both Anbu (PW-7) and Karthikeyan (PW-2) to immediately alert the police whenever Mohanakrishnan came to return the Omni Van. At around 9:45PM, Anbu alerted the police that Mohanakrishnan had come to return the Van and he had also confessed to the kidnapping, rape and murder of the two missing children along with his friend Manoharan. Pursuant to the information received by Anbu, Mohanakrishnan was arrested and a confessional statement was recorded in the presence of Anbu (PW-7) and one Santosh Kumar (not examined as a witness). The Maruti Omni Van along with one Nokia Cellphone and the driving license of Mohana
