Mitigating Death Sentences

Supreme Court of India (SC) held in Deena v. UoI, (1983) 4 SCC 645, hanging by neck is scientific and least painful. SC has also held, only ‘rarest of rare’ issues, literally meaning rarest even in rare, allow passing of a death sentence. A punishment of death is imposed when life imprisonment is absolutely inadequate.

Kuljeet Singh, alias Ranga, was convicted along with Jasbir Singh, alias Billa, for various offences in connection with murder of 2 young children. Delhi High Court confirmed a death sentence on 16/11/1978. Special Leave Petitions against same, before SC, were dismissed on 08/12/1980. Billa, by a Writ Petition, asked for re-appraisal and submitted, “he bears an unblemished past and is not a professional criminal.” 3-Judge Bench of SC, led by then Chief Justice of India – Justice Y.V. Chandrachud, held, on 21/04/1981, in Kuljeet Singh v. UoI, (1981) 3 SCC 324, “murder was most certainly not committed on spur of moment as a result of some irresistible impulse… there was a planned motivation behind crime… any 2 children would have been good enough for them… deep-laid was strategy… survival of an orderly society demands extinction of life of persons like Ranga and Billa who are a menace to social order and security… they were hand in glove with each other… we hope President will dispose of Mercy Petition… as expeditiously as he finds his convenience.” Billa and Ranga were executed on 31/01/1982. In recent past, 3-Judges of SC in Khushwinder Singh v. State of Punjab, (2019) 4 SCC 415 did impose death, when there was planning and murdering of six innocent persons including two minors, as did 3-Judges in Ishwar Lal Yadav v. State of Chattisgarh, (2019) 10 SCC 423, when there was murder of a 2-year-old child as a sacrifice to God. Senior Advocate, Siddharth Luthra did respectfully submit in Manoharan v. State, Inspector of Police, Coimbatore, (2020) 5 SCC 782, death sentences ought not to be awarded in event of a single dissent. But, knowing dissenting opinions have little precedential value, despite a dissent amidst 3-Judges in Manoharan and 3-Judges in Ravi v. State of Maharashtra, (2019) 9 SCC 622, penalties of death stood ground. In facts of Manoharan, a 10-year-old girl was horribly gang raped and thrown into a canal with her 7-year-old brother, and in facts of Ravi, a 2-year-old baby was kidnapped and assaulted over 4-5 hours till she breathed her last. Do note, Khushwinder, Ishwar Lal, Manoharan, Ravi haven’t hung yet. However, a pattern is established – brutality against children being interpreted as ‘rarest of rare’. Let’s also count in Dhananjoy Chatterjee, executed on 15/08/2004. If patterns are established, are such patterns ‘rarest of rare’ anymore?

Indian Courts cannot write off capital punishment, as long as it exists in law. Nonetheless, whether it is brutality against a child or terrorism, a proper balance has to be struck between aggravating circumstances and mitigating circumstances like – i) inadequate legal representation, ii) wholly unreliable witnesses; questionable investigation iii) young age, iv) lack of criminal antecedents, v) humble socio-economic factors, vi) subsequent mental illness, vii) good conduct in prison, viii) bright chances of reform and rehabilitation, ix) near-impossibility of committing violent acts in future and even x) inordinate time spent in deciding Petitions (Special, Review, Curative, Mercy). Notwithstanding a plethora of possible mitigating circumstances, rendering a death sentence to be futile and clearly unnecessary, ‘rarest of rare’ principle has not been adhered to always with understandable, demonstrable precision.

Justice Kurian Joseph in Chhannu Lal Verma v. State of Chattisgarh, 2018 SCC OnLine SC 2570 observed, “rarest of rare principle has not been followed uniformly or consistently… sentencing has now really become Judge-centric… notion of “an eye for an eye, tooth for a tooth” has no place in our constitutionally mediated criminal justice system… Supreme Court has on numerous occasions expressed concern about arbitrary sentencing… administration of capital punishment thus remains fallible and vulnerable to misapplication.” Indeed there are continuing examples of misapplication. Here are just two-instances. State of Maharashtra v. Digambar [Confirmation Case No. 01 of 2019, Criminal Appeal No. 810 of 2019 and Criminal Appeal No. 808 of 2019] was regarding honor killing by Digambar of his sister. Bombay High Court held, on 13/12/2021, “incident has not occurred on spur of moment… but craftily planned and meticulously executed… we are not inclined to consider young age and possibility of his reformation… we uphold sentence of death.State v. Samviel, alias Raja, [R.T. (MD) No.2 of 2021 and Crl. A.(MD) No.534 of 2021] was regarding a 7 year-old-child murdered after an aggravated penetrative sexual assault. Madras High Court cited a movie, couple of poems, religious texts and held, on 12/01/2022, “if… allowed to survive… he will definitely pollute mind of other co-prisoners… except death sentence, no other sentence will be adequate.” Both of above instances refused to assess possible mitigating circumstances. Does awarding death solve much?

Is it really a deterrent? Mohammed Ajmal Amir Kasab was executed on 21/11/2012, for involvement in attacks in Mumbai between 26/11/2008 and 29/11/2008, and Mukesh Singh/Vinay Sharma/Pawan Gupta/Akshay Thakur were executed on 20/03/2020, for involvement in a rape and murder in Delhi on 16/12/2012. Thus, only 25 days after Kasab’s execution on 21/11/2012, we witnessed a rape and murder in Delhi on 16/12/2012 which too led to an execution. What was our gain in deterring in effect? I intend my question to be rhetorical. SC, of late, has pronounced more of jail for twenty-five years/thirty years without any chance of freedom from jail time. It is appreciated. There are several articles, reports which support SC on this. Overall, on humanitarian grounds and logic, assessment of possible mitigating circumstances should bear fruit more and more often than an ordinary prudent man presently imagines.



Manoj Pratap Singh v. State of Rajasthan, [SLP (Criminal) Nos. 7899-7900 of 2015].