It was my request to the Supreme Court that all while they let go of death in case after case, to not only explain always why those cases are not ‘rarest of rare’, but also explain whether death is a penalty or an award. In the last 11 months, I have briefly described 15 cases whereby Supreme Court questioned the penalty/award of death. The Court affirmed death only in 2 cases out of those 15.

On 05.03.2019, a Three-Judge Bench were “of the opinion that there is no alternative punishment suitable, except the Death Sentence“. On 01.08.2019, a Three-Judge Bench, this time with a dissent, held, “the present case consists of a crime even more shocking than that in Khushwinder’s case” and thus, confirmed the Death Sentence. Hon’ble Justice Sanjiv Khanna had not agreed with Hon’ble Justice R.F. Nariman & Hon’ble Justice Surya Kant.

Recently, Hon’ble Justice R. Subhash Reddy did not agree with Hon’ble Justice R.F. Nariman & Hon’ble Justice Surya Kant. Fresh statistics now read as: “In the last 11 months, I have briefly described 16 cases whereby Supreme Court questioned the penalty/award of death. The Court affirmed death only in 3 cases out of those 16.” _____

The Trial Court compared the aggravating circumstances vis-à-vis the mitigating circumstances and found, the crime was committed in a most brutal, diabolical and revolting manner. The High Court held, perfectly fitting pieces of the puzzle leave no reasonable ground for a conclusion consistent with the hypothesis of innocence. It was argued, before Supreme Court, there are chinks in the culpability calculus.

“This Court has held in a catena of decisions, lack of motive would not be fatal as sometimes human beings act irrationally and at the spur of the moment. The case in hand is not entirely based on circumstantial evidence as there are reliable eye-witness depositions. Such an unshakable evidence with dense support of DNA test does not require the definite determination of the motive behind the gruesome crime.

The question which eventually falls for consideration is whether the instant case satisfies the test of `rarest of the rare’ cases and falls in such exceptional category where all other alternatives except Death Sentence, are foreclosed.

A civic society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements. Equally important is the stand-point of a ‘victim’ which includes his/her guardian or legal heirs.

The sentencing policy needs to count upon the twin test of (i) deterrent effect, or (ii) complete reformation for integration of the offender in civil society. Where the Court is satisfied, there is no possibility of reforming the offender, the punishments before all things, must be befitting the nature of crime and deterrent with an explicit aim to make an example out of the evil-doer and a warning to those who are still innocent. There is no gainsaying, the punishment is a reflection of societal morals. The subsistence of Capital Punishment proves, there are certain acts which the society so essentially abhors that they justify the taking of most crucial of the rights, the right to life.

Death Sentence.”

– Hon’ble Justice R.F. Nariman & Hon’ble Justice Surya Kant, Ravi v. The State of Maharashtra, [Criminal Appeal Nos. 1488-1489 of 2018].

“In the case of Lehna v. State of Haryana, (2002) 3 SCC 76 it was held, the special reasons for awarding the Death Sentence must be such that compel the Court to conclude, it is not possible to reform and rehabilitate the offender. There is no evidence on record to show there is no possibility of reformation and rehabilitation.

Ordinarily, if no special reasons exist, in a case of conviction based on circumstantial evidence, Death Penalty should not be imposed. In this case on hand, the conviction is ‘mainly’ based on circumstantial evidence. On this ground also, I am of the view, the Death Sentence, imposed on him, is to be modified. It is easy to assess the socio-economic condition of Ravi and it can certainly be said, he is a person below poverty line – one of the mitigating factors. I am clear in my mind, in this case on hand, the mitigating circumstances dominate over the aggravating circumstances.

Death Sentence imposed is modified to that of Life Imprisonment i.e. to suffer for life till his natural death, without any remission/commutation.”

– Hon’ble Justice R. Subhash Reddy, Ravi v. The State of Maharashtra, [Criminal Appeal Nos. 1488-1489 of 2018].

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It would be impossible to state which Judge of the Supreme Court is inherently against a Death Sentence and which Judge is not. Some Judges after 65 may finally state their beliefs, free of all pressure. But while at the Supreme Court, there may be Judges who confirm the Death Sentence in some cases while modify the Death Sentence in some others. For example, Hon’ble Justice R. Subhash Reddy. In Ishwar Lal Yadav v. State of Chattisgarh, [Criminal Appeal Nos. 298-299 of 2018] affirmed the Death Sentence, along with Hon’ble Justice R.F. Nariman & Hon’ble Justice Surya Kant. Fresh statistics now read as: “In the last 11 months, I have briefly described 17 cases whereby Supreme Court questioned the penalty/award of death. The Court affirmed death only in 4 cases out of those 17.”

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“There cannot be any hard and fast rule for balancing the aggravating and mitigating circumstances. Accused were not possessed of the basic humanness, they completely lacked the psyche or mindset which can be amenable for any reformation. We are of the view that this is a case of ‘rarest of rare’ cases where Death Sentence imposed by the Trial Court is rightly confirmed by the High Court.“

– Hon’ble Justice R. Subhash Reddy, Ishwar Lal Yadav v. State of Chattisgarh, [Criminal Appeal Nos. 298-299 of 2018].

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There may be also Three Judges who reach a conclusion in three different ways, in three different cases, while confirming/modifying the Death Sentence. For example, Hon’ble Judges R.F. Nariman, R. Subhash Reddy and Surya Kant. In Ravi v. The State of Maharashtra, [Criminal Appeal Nos. 1488-1489 of 2018]; Death Sentence: 2:1. In Ishwar Lal Yadav v. State of Chattisgarh, [Criminal Appeal Nos. 298-299 of 2018]; Death Sentence: 3:0. In Ravishankar v. The State of Madhya Pradesh, [Criminal Appeal No. 1523-1524 of 2019]; Death Sentence: 0:3. Fresh statistics now read as: “In the last 11 months, I have briefly described 18 cases whereby Supreme Court questioned the penalty/award of death. The Court affirmed death only in 4 cases out of those 18.”

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“Appellant has been unable to offer any alibi and his defence merely rests on deflecting guilt on to the family of the deceased, which is without a shred of evidence. Further, no effective challenge has been made against any medical or DNA reports. There can thus be no second opinion against the guilt and consequential conviction.

The exercise of drawing a balance sheet of aggravating and mitigating circumstances whilst keeping in mind the peculiarity of facts and circumstances of each case has nevertheless been very tedious. It has resulted in a lack of unanimity of standard amongst different Benches resulting in differential standards for award of Capital Punishment. 

Many protagonists of abolishment of Death Penalty have been passionately urging this Court to not award death in cases of circumstantial proof claiming an inherent weakness in cases without ocular evidence. They highlight an ever-remaining possibility of reform and rehabilitation. Simultaneously, however, a parallel line of thought has strongly advocated that death be imposed to maintain proportionality of sentencing and to further the theories of deterrence effect and societal retribution. These people contend that sentencing should be society-centric instead of being Judge-centric and make use of a cost-benefit analysis to contend that the minuscule possibility of putting to death an innocent man is more than justified in the face of the alternative of endangering the life of many more by setting a convict free after spending 14-20 years in imprisonment. This possibility, they further state, is already well safeguarded against by a `beyond reasonable doubt’ standard at the stage of conviction.

Regardless of the suggestive middle path this Court has, when the occasion demanded, confirmed Death Sentences in many horrendous, barbaric and superlative crimes. On a detailed examination of precedents, it appears to us that it would be totally imprudent to lay down an absolute principle of law that no Death Sentence can be awarded in a case where conviction is based on circumstantial evidence. Such a standard would be ripe for abuse by seasoned criminals who always make sure to destroy direct evidence. It cannot be said that in every such case nothwithstanding that the prosecution has proved the case beyond reasonable doubt, the Court must not award Capital Punishment for the mere reason that the offender has not been seen committing the crime by an eye-witness. Such a reasoning, if applied uniformly and mechanically will have devastating effects on the society which is a dominant stakeholder in the administration of our criminal justice system.

This Court has increasingly become cognizant of `residual doubt’ in many recent cases which effectively create a higher standard of proof over and above the `beyond reasonable doubt’ standard used at the stage of conviction, as a safeguard against routine Capital Sentencing, keeping in mind the irreversibility of death. These ‘residual doubts’ although not relevant for conviction, would tilt towards mitigating circumstance to be taken note of whilst considering whether the case falls under the ‘rarest of rare’ category. This theory is also recognized in other jurisdictions like the United States, where some State Courts like the Supreme Court of Tennessey in State v. McKinney, 74 S.W.3d 291 (Tenn. 2002) have explained that residual doubt of guilt is a valid non-statutory mitigating circumstance during the sentencing stage.

In the present case, there are some residual doubts in our mind. We are cognizant of the fact that use of such ‘residual doubt’ as a mitigating factor would effectively raise the standard of proof for imposing the Death Sentence, the benefit of which would be availed of not by the innocent only. However, it would be a misconception to make a cost-benefit comparison between cost to society owing to acquittal of one guilty versus loss of life of a perceived innocent. This is because the alternative to death does not necessarily imply setting the convict free. We are thus of the considered view that the present case falls short of the ‘rarest of rare’ cases where the Death Sentence alone deserves to be awarded. 

Life Imprisonment; No Remission.”

– Hon’ble Justice Surya Kant, Ravishankar v. The State of Madhya Pradesh, [Criminal Appeal No. 1523-1524 of 2019].