Suspension of life term sentence denied

The Madurai Bench of Madras High Court upholding the contentions of the public prosecutor that, the appellant did not deserve to be let out on bail since the charge of murdering a young girl in a gruesome manner had been proved before the trial court beyond all reasonable doubts, dismissed the application of the convict to suspend his life term.

The public prosecutor also contented that, the appellant had inflicted injuries on the girl’s father also when he attempted to prevent the murder. Later, he carried the girl’s severed head and threw it in a nearby bush. The prosecution through cogent evidence adduced by the girl’s father as well as other witnesses had proved the entire incident. Therefore, the appellant has not made out a case for suspension of sentence

Earlier the trial court convicted the appellant for life term in the case of trespassing and murder of deceased victim who refused to marry him and severing her head in the presence of her father, mother and younger sister. Charges were made under Section 302 and Section 307 of the Indian Penal Code.

Section 302: Punishment for murder

Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.

Section 307: Attempt to murder

Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts. [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]

Death Sentence for rape and murder of a 4 year old

As reported in Times of India, Supreme Court’s 3 Judge Bench of Justices Dipak Misra, R F Nariman and U U Lalit sent a 47-year-old man to the gallows for luring a 4-year-old girl with the promise of buying her chocolates, brutally assaulting her sexually and then murdering her by using two heavy stones to crush her skull when she was writhing in pain after the perverted act. 

Accused was convicted based on ‘last seen theory‘ corroborated by several independent witnesses. On February 23, 2012, trial court awarded death penalty finding the crime falling within the parameters for ‘rarest of the rare‘ category. Also court could not find any mitigating circumstances in favour of the convict, an exercise mandated by the Supreme Court in Machhi Singh case. 

While affirming the conviction and sentence of trial court, the Nagpur Bench of Bombay High Court observed that, “The accused raped a 4-year-old girl and thereafter battered and smashed her head by two heavy stones and killed her… Battering the head of the girl of tender age was done by the accused with extreme cruelty.

Justice Misra observed that, “This case deserves to fall in the category of “rarest of rare” cases. It is inconceivable from the perspective of society that a married man aged about two scores and seven make a four-year minor innocent girl child the prey of his lust and deliberately cause her death.” 

Further, it was observed by the Bench that, the child trusted the accused, because of his acquaintance with her family and the socially ingrained trust attached to such proximity with elders. “The offence committed by the accused is not only betrayal of an individual trust but destruction and devastation of the social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective,” Court said and upheld award of death penalty.

Court further observed that, “the offence was not committed under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed and rehabilitated. Also, court was of the opinion that, “the barbaric act of the appellant does not remotely show any concern for the precious life of a minor child who had not seen life. The criminality of the conduct of the appellant is not only depraved and debased, but can have a menacing effect on the society“, and “as the circumstances would graphically depict, he would remain a menace to the society, for a defenceless child has become his prey. In our consideration, there are no mitigating circumstances“, the court said.

Supreme Court gives 2nd thought on death penalty

Mahima Gherani

Showing increasing distress in awarding death penalty, the Supreme Court found two main questions bothering it after Sonu Sardar was awarded death penalty by the trial court, which was accepted by the High Court and further ratified by the apex court and his merciful plea was rejected by the President.

Sonu along with his minor collaborators were arrested but three of them flee after looting and murdering the family of a Muslim scrap dealer, including two minor children and women in Chattisgarh. After committing the crime, Sonu was the only one to be held for trial and the other three absconders where yet to be arrested.

Appearing on Sonu’s side advocate Raja Ramachandran said that it had now come to light that the accused was 18 years and 2months old while committing the crime, and not 23 years as it was recorded in the judgment.

The two major questions before the Chattisgarh counsel were, Firstly whether the accused was just above the age of juvenility, and Secondly being whether it was could be clearly pin pointed that Sonu played a major role in multiple murders committed.

Interestingly, both these issues had come before the court only in February 2012.

Speaking for the accused Mr.Ramachandran said that there were no previous criminal records pending against him and nor did he ever try to escape during the jail break even though he had a fair chance. In his opinion, the court had erroneously recorded that there were no circumstances in Sonu’s favour. The State had failed in discharging his duty of proving that the convict was beyond the realm of reformation.

Taking into account all the issues that came before the court, the judgment of 2012 was that even though Sonu was young, he had committed a crime which was pre-meditated and he was a threat to the society which was one among the rarest of the rare cases where death penalty was the appropriate punishment to be given.

Where did the Delhi High Court go wrong?

As the saying goes, “It is better to risk saving a guilty person than to condemn an innocent one

Sandeep Menon Nandakumar ((B.A.LL.B. (Hons.) (NUALS), LLM (CUSAT), LLM (Exeter, UK); Assistant Professor (Sr.), VIT Law School, Chennai)).

The recent Delhi High Court judgment in Achay Lal v. State Govt of NCT of Delhi (2014) has created a lot of debate and discussions. Most of the negative comments on the judgment are a result of the improper analysis of the same or in other words, due to the erroneous reporting of the judgement done by some reporting websites. The main issue in this case is evident from the initial discussions in the judgment which states that “it has to be ascertained whether the deceased died a natural death or a homicidal death and whether “forcible” sexual intercourse was committed with her or not”. The Hon’ble High Court held that “at best the appellant could have committed forceful intercourse but the same was not forcible and contrary to the wishes of the deceased and hence entitled for an acquittal”.

The main reason for much of the debate and discussions was not because the accused was acquitted but due to the observation of the court that “as regards the offence punishable under S.376 IPC the deceased was aged around 65-70 years, thus beyond the age of ‘menopause’. What relevance this has to do with the judgment or reasons for the judgment (ratio decidendi) is unclear. The main reason for the judgment was itself made clear by the Division Bench holding that even if the sexual intercourse was ‘forceful’ it was not ‘forcible’ and contrary to the wishes and consent of the deceased. This being the reason for the judgment, there is no relevance in the observation made by the judges regarding the fact that the victim has crossed the age of menopause.

Before we proceed further, let me state that the informal decision of the Supreme Court to keep all the judgments short from now on is a welcoming move. As regards how much the same is binding on all other courts in the territory of India is unknown, but a judgment like the one that the Delhi H.C. has made in the instant case clearly matches with the informal decision of the S.C.

And this is precisely where one can see the shortcomings of the judgment. This judgment is too short and is devoid of adequate reasons. The Report of the Committee on Amendments to Criminal Law (Justice Verma Commission) has specifically concluded that the offences such as rape and sexual assault are not merely crimes of passion but an expression of power. The reason for stating this is because this was a case involving a question of rape and murder and the H.C. should have taken a bit more effort to clarify the terms and statements used in the judgment. Ratherit seems that the court concluded everything by making three to four random observations without any sort of explanations leaving it to the reader to come to inconsistent conclusions. This is a case where the victim is dead and sadly she is no more to depose whether she has consented to the act or not. The court appreciates the circumstantial evidence and comes to the conclusion that “the forceful penetration is evident from the injuries on the vaginal orifices. However, besides the injuries on the vagina there is no other injury mark on the body of the deceased or on the appellant to show that there was any protest by the deceased… Hence it has not been proved beyond any reasonable doubt that the appellant committed sexual intercourse with the deceased contrary to her wishes or her consent”. The court here completely seems to forget the fact that the proviso to section 375 IPC specifically states that the fact that the woman does not physically resist to the act of penetration alone should not be construed as an act of consenting to the sexual activity. One amongst many criticisms levelled against the judgment in Mathura rape case has been remedied by the later amendments to IPC but this court seems to reiterate what has happened in Mathura rape case. Moreover there have been several case laws (Guddu v. State of M.P., (2007) 14 SCC 654) where even the fact such as the redness of the hymen was considered to be sufficient to constitute the offence of rape.

The court in this case concluded that the victim had consumed alcohol along with the accused though it had been answered in the negative by the deceased’s husband during trial. Even if it was a case of voluntary intoxication the court should have noted that it vitiates the consent as required under Section 375 IPC. It is of common knowledge that the consent under Section 375 IPC means voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.  It being so, the H.C. should have at least kept in mind that sexual intercourse under influence of drink cannot be said to be intercourse with consent.

The court has relied on circumstantial evidence in the instant case which according to the court goes in favour of the accused. It is indeed shocking to see that the court is not even bothered to find out the truth of a situation wherein the victim was lying dead and naked on the floor, her shirt upto her neck with a blanket on some part of her body and the accusedwho was in an intoxicated condition who was inside the room prevented people (who went to the scene of crime after hearing the news) from entering the room saying that the victim was like his “mother” and had not died and was sleeping after taking liquor. The court seems to agree that with the same person who was addressed as mother the accused had “forceful” sex but not “forcible” sex and hence the act does not amount to rape. The court is clear in acquitting the accused under Section 302 IPC as the requisite intention required as per the section is not made out. But at any rate the court had the responsibility to explain what they meant by “forceful” and “forcible” and how different these concepts are from each other with special reference to Section 376 IPC.

One could see that as a result of this judgment, the victim (who was married) who had already lost her life is depicted as a woman who consented to forceful sexual intercourse with a person other than her husband, the terms ‘forceful’ and ‘forcible’ still unclear from the judgment.