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Code of Criminal Procedure, 1973: s.235(2) – Hearing on question of sentence – Death sentence – Right of a convict – Held: Opportunity should be given to a convict to bring on record mitigating circumstances for reduction of the sentence and a balance should be struck between the aggravating and the mitigating circumstance – In the instant case, the petitioner did not get the benefit of competent legal assistance – Trial Court also did not make any attempt to elicit materials relevant to the imposition of death sentence – No affidavit was called for – The question of whether there were any mitigating circumstances was not addressed by the Trial Court or the appellate courts – Even though the hearing under s.235(2) on the question of sentence was fixed on 31.5.2007, that is, two days after pronouncement of the judgment and order of conviction of the petitioner, on 29.5.2007, the hearing was preponed to 29.5.2007 itself after the petitioner was produced from jail custody and death sentence was imposed – Preponement by the Trial Court of hearing under s.235(2) at short notice, which is in effect, no notice, appears to have denied the petitioner an effective hearing – Hearing. Review: Rape and murder of eight years old girl – Conviction under ss.376 and 302 and death sentence – Concurrent finding of trial court and High Court – Special leave petition against the same dismissed – Review petition also dismissed – Second review petition filed in view of Constitution Bench decision in Mohd. Arif case – Held: Review petition, filed about eight years ago, was dismissed by circulation on 24.08.2011 – Even thereafter, for almost three years the death sentence was not executed – The instant application for reopening the review and hearing the same in Open Court, has also been pending for over four years – In view of decision in Mohd. Arif case, the petitioner is entitled to have the application for review which was dismissed by circulation, reopened and heard in open court. for Sentence/Sentencing: Death sentence – Prayer commutation – Rape and murder of eight years old girl – Conviction under ss.376 and 302 IPC and death sentence – Concurrent finding of trial court and High Court – Special leave petition against the same dismissed – Review petition – Review restricted to question of commutation of sentence – Held: Death sentence is imposed in the rarest of rare cases, for which special reasons have to be recorded, as mandated in s.354(3) CrPC – In deciding whether a case falls within the category of the rarest of rare, the brutality, and/or the gruesome and/or heinous nature of the crime is not the sole criterion – The Court is to also take into consideration, the state of his mind, his socio-economic background, etc. – Therefore, before imposing the extreme penalty of death sentence, the Court would have to satisfy itself that death sentence is imperative, as otherwise the convict would be a threat to society – The Court has to further satisfy itself that there is no possibility of reform or rehabilitation of the convict – In this case, an eight year old innocent girl fell prey to the carnal desire and lust of the petitioner – The conviction was based on circumstantial evidence and extra judicial confession made by the petitioner to the police in course of investigation – It was not known whether there was any pre-meditation on the part of the petitioner to murder the victim – No doubt, the crime was abhorrent, but it is doubtful as to whether the crime committed by the petitioner can be termed as “rarest of the rare” – The petitioner has for all these years virtually been in solitary confinement – Medical evidence revealed that he was not mentally sound – The mental health of the petitioner at the time of execution is a relevant mitigating factor which must be taken into consideration in the instant case – Therefore, it is not appropriate to affirm the death sentence – The death sentence imposed on the petitioner is commuted to life imprisonment, till his natural death, without reprieve or remission – Administration of criminal justice – Hearing – Code of Criminal Procedure, 1973 – s.354(3) – Penal Code, 1860 – ss.376 and 302.Code of Criminal Procedure, 1973: s.235(2) – For effective hearing under s.235(2), the suggestion that the court intends to impose death penalty should specifically be made to the accused, to enable the accused to make an effective representation against death sentence, by placing mitigating circumstances before the Court – Penal Code, 1860 – ss.376 and 302 – Hearing. Administration of criminal justice: Legal assistance to the convict – Held: The legal assistance provided to the convict at every stage including the stage of hearing on the question of sentence has to be effective and even if the accused has remained silent, the Court would be obliged and duty bound to elicit relevant factors – Code of Criminal Procedure, 1973 Prisons: It is well recognised worldwide, that owing to the difficult circumstances prevailing in prisons, such as, enforced solitude, inadequate health care, loss of livelihood etc., prisoners often develop mental illness after their admission into prison – The relevant Prison Rules also recognise the phenomenon of post- conviction mental illness and state that the execution of such persons shall be deferred, pending orders of the Government – Administration of criminal justice. |
