Delhi high Court orders behavioural examination of Rapist Murderer to satisfy the Criminal Test before imposing Death Penalty;

In a landmark- first of it's kind Judgment a Delhi High Court Bench consisting of Justices Muralidhar and Mukta Gupta after upholding the Conviction of an Accused for Rape and Murder of a 3 year old Child, ordered a detailed inquiry about the probability  that,  in  the  future,  the  accused  would  commit criminal acts of violence as would constitute a continuing threat to society and probability of his reformation and rehabilitation.

The Court was considering a Death Reference filed by NCT Delhi for the confirmation of Death Sentence of Bharat Singh along with his appeal against conviction under S.376(2)(f) and S.302 of IPC and sentence of Death imposed by a Fast-track Court.

It was in Shankar Kisanrao Khade v. State of Maharashtra, the two-Judge Bench of the Supreme Court reiterated, in para 49, the aggravating circumstances (Crime test) and the mitigating circumstances (Criminal test).The Court pointed out that in Bachan Singh Case it had been emphasised that for the fourth of the mitigating circumstances enumerated i.e. "the chances of the accused of not indulging  in  commission  of  the  crime  again  and  the  probability  of  the accused being reformed and rehabilitated", the State ought to produce evidence. Developing on the above theme, the two Judge Bench in Shankar Kisanrao Khade explained that the tests that we have  to  apply,  while  awarding  death  sentence,  are  "crime test", "criminal test" and the R-R Test and not "balancing test". To award death sentence, the "crime test" has to be fully satisfied, that is 100% and "criminal test" 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the "criminal test" may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R lest). R-R Test  depends  upon  the  perception  of  the  society  that  is "society centric" and not "Judge centric" that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to  look  into  variety  of  factors  like  society's  abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc.

While applying the above directives to the present Case the Court held as follows;

"Therefore, in the present case, the Court considers it appropriate, before deliberating on the question of sentence to be awarded to the accused Bharat Singh for the offence under Section 302 IPC, to direct the Secretary, Home Department, Government of NCT of Delhi to assign to any one Probation Officer, the task of submitting to this Court a report specifically on the following two aspects:

(i)  Is  there  a  probability  that,  in  the  future,  the  accused  would  commit criminal acts of violence as would constitute a continuing threat to society?

(ii) Is there a probability that the accused can be reformed and rehabilitated?

The decisions discussed above which will provide adequate guidance to the PO as to how he has to go about his task of preparing and presenting a detailed report on the above two aspects. The PO will, inter alia:

(a) enquire from the jail administration and seek a report as to the conduct of the accused while in jail. The jail authorities will extend their full co- operation to the PO in this regard.

(b) meet the family of the accused and the local people even if it requires travelling to the place from where the accused hails. He will seek their inputs on the behavioural traits of the accused with particular reference to the two issues highlighted.

(c) The PO shall consult and seek specific inputs from two professionals with not less than ten years‟ experience from the fields of Clinical Psychology and Sociology.

(d) The State, through the Secretary, Home Department, GNCTD will make appropriate arrangements and reimburse the expenses incurred for the PO to comply with the directions issued in this judgment.

The Court directed that the report of the PO will be submitted within a period of ten weeks to this Court in a sealed cover.