| Headnote |
Review – In death penalty cases – Application of restrictive principles – Murder – Rape – Co-accused (now deceased) using borrowed school van, picked up a 10-year old girl and her 7-year old brother who were waiting to go to school – He thereafter picked up his friend (accused-petitioner) from his house – Girl child was raped and sodomised – Both children were administered poison (cow dung powder) mixed in milk – However, they spat out the substance and only ingested a small portion – Since poisoning did not work, the children were thrown into a nearby canal, leading to their death by drowning – Conviction of accused-petitioner u/ss.302, 376(2)(f), (g) & 201, IPC and death sentence by trial court and High Court – Present three-Judge Bench unanimously affirmed the conviction and by majority upheld the death sentence – Majority judgment upholding conviction and death penalty delivered by Surya Kant, J. (for Rohinton F. Nariman, J. and himself) – Minority judgment upholding conviction but awarding life sentence (till natural death) without remission / commutation delivered by Sanjiv Khanna, J. – Review Petitions – Held: Liable to be dismissed – Per Surya Kant, J. (for R.F. Nariman, J. and himself), held: Prosecution case was established through numerous evidences in addition to a clear confession proving petitioner’s guilt beyond any residual doubt – Conflicting versions were deposed by petitioner and defence witnesses, and no explanation to discharge onus u/s.106 of the Evidence Act was provided – Hence, it was not a case fit for application of theory of “residual doubt” – Just because the now deceased co-accused was the mastermind whose offence was comparatively more egregious, one cannot commute the otherwise barbarically shocking offences of the petitioner – Also, attempted retraction of confession by the petitioner showed how he was in fact remorseless – It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist – Offences of petitioner were so grave as to shock the conscience of the Court and of society and amounted to the rarest of the rare – No grounds to review judgment upholding his conviction and death penalty – Per Sanjiv Khanna, J., held: Reasons given by Surya Kant, J. in dismissing the review petition and upholding the conviction of petitioner are entirely agreed upon and concurred with – On the question of sentence, no good ground and reasons to review the observations and findings in the minority judgment – Penal Code, 1860 – ss. 302, 376(2)(f), (g) & 201 – CrPC, 1973 – ss.163, 164 – Evidence Act, 1872 – ss.24 and 106.Review – Scope of – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Scope of a review is more constrained than that of an appeal – A party cannot be allowed to re-urge the case on merits to effectively seek re-appreciation of evidence when the matter has already been decided earlier, even if on different grounds – Interference in the earlier judgement assailed in a Review is permissible only on the basis of an error apparent on the face of record or discovery of important new evidence which has a direct bearing on the ultimate outcome of the case and if not well appreciated, would cause manifest injustice.Precedents – Verdicts with multiple opinions – Interpretation of – Dissenting opinions – Precedential value of – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Dissenting opinions have little precedential value and there is no difference in operation between decisions rendered unanimously or those tendered by majority, albeit with minority dissenting views – Jurisprudence.Confession – Validity – Voluntariness of a confession – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Cornerstone of a valid confession in India is only whether such a statement was made in compliance with statutory provisions which mandate that the same must be before the Magistrate after compliance with certain safeguards meant to ensure voluntariness and lack of coercion by the police – On facts, the Magistrate (PW-28) duly complied with all procedural requirements for recording of a confessional statement and affirmatively satisfied himself of the voluntariness of the petitioner’s confession – CrPC, 1973 – ss.163, 164 – Evidence Act, 1872 – s.24.Confession – Retracted confession – Effect of – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]:: Even in the absence of an express provision for retracting a confessionary statement once made, the Courts have preferred a rule of prudence whereby in case of retraction, the Court reduces the probative value of such confessionary statements and seeks corroborating evidence – CrPC, 1973 – ss.163, 164 – Evidence Act, 1872 – s. 24. Confession – Objective and use of – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Provisions permitting use of confessionary statements in criminal trials were statutorily included as an acknowledgement of the possibility that in certain circumstances an accused may voluntarily confess to his offence(s). Sentence / Sentencing – Death penalty – Plea that death ought not to be awarded in cases of circumstantial evidence – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Not tenable – There can be no hard rule of not awarding death in cases based on circumstantial evidence – Criminal Law. Sentence / Sentencing – Death penalty cases – Opportunity for oral arguments on the question of sentence – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: In cases of death penalty, since the punishment is irreversible and right to life u/Art.21 of the convict is violated, it is necessary to provide at least one opportunity for oral arguments on the question of sentence – Constitution of India, 1950 – Art. 21. Sentence / Sentencing – Death penalty – Grounds for commutation – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Even observed devoid of any aggravating circumstances, mere young age and presence of aged parents cannot be grounds for commutation – One may view that such young age poses a continuous burden on the State and presents a longer risk to society, hence warranting more serious intervention by Courts.Code of Criminal Procedure, 1973 – s.164 – Defence plea regarding absence of a counsel during proceedings before the Magistrate u/s.164, CrPC resulting into prejudice – Held [per Surya Kant, J. (for R.F. Nariman, J. and himself)]: The plea is misconceived – s.164 CrPC does not contemplate that a confession or statement should necessarily be made in the presence of the advocate(s), except, when such confessional statement is recorded with audiovideo electronic means. |
