The Supreme Court in Manoj Pratap Singh v. State of Rajasthan, SLP (Crl.) No(s). 7899-7900 of 2015 while upholding the death sentence awarded to a man for the rape and murder of a seven-and-a-half-year-old mentally and physically challenged girl, observed that it has never been the effort of the Courts to somehow make the death penalty redundant and non-existent for all practical purposes. This case was based on Circumstantial evidence.
The appellant requested to get the death penalty set aside based on the fact that he has a minor daughter and an aged father, and the crime was committed when he was only 28 years of age. He also argued that his overall conduct in prison is without any blemish except the allegation of his involvement in a case of murder.
The judgment reflected upon two important aspects of law points related to Circumstantial Evidence and the issue of Death Penalty
Panchsheel of Circumstantial Evidence
The principles explained and enunciated in the case of Sharad Birdhichand Sarda v. State of Maharashtra: (1984) 4 SCC 116 remain a guiding light for the Courts in regard to the proof of a case based on circumstantial evidence, wherein this Court referred to the celebrated decision in the case of Hanumant v. State of Madhya Pradesh.: AIR 1952 SC 343 and deduced five golden principles, panchsheel, of proving a case based on circumstantial evidence in the following passages: –
- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made:
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
No person can be convicted on pure moral conviction.
155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry [1952 NZLR 111] thus:
“Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.”
156. Lord Goddard slightly modified the expression “morally certain” by “such circumstances as render the commission of the crime certain”.
157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.
Sub-section (2) of Section 235 CrPC, providing for mandatory hearing of the accused before passing sentence. Sub-section (3) of Section 354 CrPC, requiring reasons for sentence and ‘special reasons’ in case of death sentence.
Death Penalty and the Law
The quest for justice in such cases, with death sentence being awarded and maintained only in extreme cases, does not mean that the matter would be approached and examined in the manner that death sentence has to be avoided, even if the matter indeed calls for such a punishment. In the case of Jagmohan Singh v. The State of U.P.: (1973) 1 SCC 20, the questions in their broader spectrum were raised about the constitutional impermissibility of death sentence. Thus, the Bench concluded that ‘the death sentence imposed after trial in accordance with the procedure established by law is not unconstitutional under Article 21.’
Two major factors/events after the decision in Jagmohan (supra) led to another reference to the Constitution Bench of this Court in regard to the constitutional validity of death penalty for the offence of murder as also of the sentencing procedure. One had been the amendment of the law relating to criminal procedure with advent of the Code of the Criminal Procedure, 1973 in replacement of the old Code of 1898, which introduced, as regards sentencing procedure, the above-quoted subsection
(2) of Section 235 and sub-section (3) of Section 354. Several persons convicted of murder and sentenced to death filed the petitions under Article 32 of the Constitution of India challenging the constitutional validity of death penalty provided in Section 302 IPC for the offence of murder and that of the sentencing procedure provided in sub-section (3) of Section 354 CrPC. The other one had been the majority opinion of a 3-Judge Bench of this Court in the case of Rajendra Prasad v. State of Uttar Pradesh: (1979) 3 SCC 646, purportedly seeking to whittle down the ratio of Jagmohan (supra); and correctness of such an opinion having been doubted by another Bench of this Court.
The reference so made to the Constitution Bench came to be answered in locus classicus
Bachan Singh (supra) with its ‘rarest of rare’ doctrine. The opinion of majority in Bachan Singh is the guiding light and foundational discipline for all the later developments and enunciations on the subject. In Bachan Singh (supra), the Constitution Bench of this Court examined two major questions, i.e., as to whether death penalty provided for the offence of murder under Section 302 IPC was unconstitutional; and if not, as to whether the sentencing procedure in Section 354(3) CrPC was unconstitutional on the ground that it invested the Court with unguided and untrammeled discretion.
IBachan Singh (supra) judgment has been succinctly summarised and its principles explained by another Constitution Bench of this Court in the case of Mithu v. State of Punjab: (1983) 2 SCC 277 while dealing with the question of constitutional validity of Section 303 IPC, which provided for death sentence as the mandatory punishment for a person who, being under sentence of imprisonment for life, would commit murder. In the course of declaring the said provision contained in Section 303 IPC constitutionally invalid, the Constitution Bench dealt with a large number of arguments; and one of them had been that the validity of death sentence had already been upheld in Bachan Singh (supra) and, therefore, such questions should not be allowed to raise their head over again.
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.”
The Court responded negatively and stated that “We could only wonder what more of criminal activity would qualify as a blemish, if not the involvement and conviction in a case of murder of a fellow jail inmate! This is apart from the other 7 days’ punishment earned by the appellant for quarrelling with another jail inmate.” The court also rejected the appellant’s suggestion concerning the psychological evaluation report and further refused to proceed with the theory of residual doubt.
The mandate for awarding punishment which is greater in degree does not correspondingly lead to the proposition that the appellant could not have been convicted of the offence under Section 376 IPC as also under Section 6 POCSO. This aspect need not detain us much longer because the core question in this case after confirmation of conviction is as to whether death sentence awarded for the offence under Section 302 IPC be maintained or be substituted by any other sentence.
The court observed that in the present case, where the appellant is found to be indulging incessantly in criminal activities both before and after the crime in question; calling for any further report of the likelihood of reformation and rehabilitation of the appellant could be proposed only if the judicial process is determined to annul the death sentence altogether, by finding one way or the other to avoid the same in every case.
“Such an approach would be counter-productive to the entire system of maintenance of order in the society; and could be countenanced only if we would be inclined to think that whatever be the society’s cry for justice, the statutory provision of death sentence should itself be given its interment or burial.”
The court, therefore, concluded that read as a whole, the fact-sheet concerning the appellant leads only the logical deduction that there is no possibility that he would not relapse again in this crime if given any indulgence.
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Jyoti Srivastava - Editor, Chief Executive Officer, Indian Law Watch
