Death Penalty -Trial Court Must Elicit Information From State & Accused On Mitigating Circumstances : Supreme Court Issues Guidelines

Observing that death sentences are most often imposed by the trial courts in a retributive sense, the Supreme Court has issued a set of practical guidelines to ensure that  the mitigating circumstances of the accused are properly considered at the trial stage itself.

The Court noted that in most cases, the information relating to the mitigating circumstances are collected at the appellate stage, and such information mostly relate to the post-conviction circumstances.   

"The unfortunate reality is that in the absence of well-documented mitigating circumstances at the trial level, the aggravating circumstances seem far more compelling, or overwhelming, rendering the sentencing court prone to imposing the death penalty, on the basis of an incomplete, and hence, incorrect application of the Bachan Singh test", the Court observed.

A bench comprising Justices Uday Umesh Lalit, S Ravindra Bhat and Bela M Trivedi noted that there is no "concrete framework"  to measure and evaluate the possibility of reformation. The judgment authored by Justice Bhat stated that the inconsistencies in the approach of trial courts contribute to a "patchwork jurisprudence on capital sentencing", and in turn "undermines the equality principle and due process protection".

"As a small step to correct these skewed results and facilitate better evaluation of whether there is a possibility for the accused to be reformed (beyond vague references to conduct, family background, etc.), this court deems it necessary to frame practical guidelines for the courts to adopt and implement, till the legislature and executive, formulate a coherent framework through legislation", the Court said.

Accordingly, the bench issued the following "practical guidelines to collect mitigating circumstances".

Mitigating circumstances must be considered at the trial stage; Court must elicit information from the accused and the State

Firstly, the bench stated, "There is urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage".

 To do this, the trial court must elicit information from the accused and the state, both.

State must produce materials disclosing the psychiatric and psychological evaluation of the accused.

The state, must - for an offence carrying capital punishment - at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person's frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and(7) spelled out in Bachan Singh judgment(the factors are extracted below for reference). Even for the other factors of (3) and (4) - an onus placed squarely on the state – conducting this form of psychiatric and psychological evaluation close on the heels of commission of the offence, will provide a baseline for the appellate courts to use for comparison, i.e., to evaluate the progress of the accused towards reformation, achieved during the incarceration period.

State must collect additional information relating to family background, education, socio-economic background of the accused:

Next, the State, must in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows:

a) Age

b) Early family background (siblings, protection of parents, any history of violence or neglect)

c) Present family background (surviving family members, whether married, has children, etc.)

d) Type and level of education

e) Socio-economic background (including conditions of poverty or deprivation, if any)

f) Criminal antecedents (details of offence and whether convicted, sentence served, if any)

g) Income and the kind of employment (whether none, or temporary or permanent etc);

h) Other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any) etc.

This information should mandatorily be available to the trial court, at the sentencing stage. The accused too, should be given the same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances.

Information regarding accused's jail conduct should be called for, including psychiatric and psychological report

Lastly, information regarding the accused's jail conduct and behaviour, work done (if any), activities the accused has involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities (i.e., probation and welfare officer, superintendent of jail, etc.). If the appeal is heard after a long hiatus from the trial court's conviction, or High Court's confirmation, as the case may be – a fresh report (rather than the one used by the previous court) from the jail authorities is recommended, for an more exact and complete understanding of the contemporaneous progress made by the accused, in the time elapsed. The jail authorities must also include a fresh psychiatric and psychological report which will further evidence the reformative progress, and reveal post-conviction mental illness, if any.

The Court said that State's duty(to produce information about mitigating circumstances) is heightened in importance even more so, in the Indian context where a majority of the accused have a poor or rudimentary level of legal representation.

Courts can call for additional information

In Anil v. State of Maharashtra (2014) 4 SCC 69,  the Supreme Court had directed the "criminal courts, while dealing with the offences like Section 302 IPC, after conviction, may, in appropriate cases, call for a report to determine, whether the accused could be reformed or rehabilitated, which depends upon the facts and circumstances of each case".

In this case, the bench expressed its approval of the above direction.

"We hereby fully endorse and direct that this should be implemented uniformly, as further elaborated above, for conviction of offences that carry the possibility of death sentence", the Court said.

Mitigating circumstances mentioned in Bachan Singh

The Court referred to the mitigating circumstances, which the Court should take into account while exercising the discretion to impose death sentence, mentioned in the Bachan Singh  vs State of Punjab (1980) 2 SCC 684 judgment as follows :

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."

The Court was deciding the appeals filed by three persons(two men and a woman), who were sentenced to death for the murder of three women (a woman, her mother-in-law and her daughter) during the course of robbery.

Court calls for reports about convicts

Prior to the hearing on sentencing before this court, a direction was issued the State to (on the basis of personal interviews and prison records) file for each of the accused – a Psychological Evaluation Report, a Probation Officer's Report, and Prison Report including material on their conduct and work done.

The appellants also placed material on record before the court, to demonstrate their circumstances. Saying that an "individualised approach" is needed, the Court assessed the circumstances of each of the accused individually.

The Apex Court criticised both the trial court and the High Court for not providing an effective sentencing hearing to the accused, at the relevant stage, which is a right under Section 235(2) CrPC.

"The trial court order on sentencing, records in passing - the plea of 'young age' and 'socio-economic factors' as mitigating circumstances, but reflects, at best, a mechanical consideration of the same. Swayed by the brutality of the crime and "shock of the collective and judicial conscience", the High Court affirmed imposition of the death penalty solely on the basis of the aggravating circumstances of the crime, with negligible consideration of mitigating circumstances of the criminal. This is in direct contravention of Bachan Singh", the Supreme Court observed.

While agreeing that the crime committed by the appellants was brutal and heinous, the Court said that the imposition of death penalty was unwarranted in the facts and circumstances of the case.

The Supreme Court took into account the young age of the accused at the time of the incident (35, 20, 22 respectively), the lack of motive other than robbery, the overall good conduct in prison which indicated an inclination to reform.

"It is evident that they have already, while in prison, taken steps towards bettering their lives and of those around them, which coupled with their young age122 unequivocally demonstrates that there is in fact, a probability of reform. On consideration of all the circumstances overall, we find that the option of life imprisonment is certainly not foreclosed", the Court said.

Accordingly, the death penalty was commuted to life imprisonment for a minimum term of 25 years.

Also read another report about the judgment : Prosecution In All Criminal Cases Shall Furnish List Of Statements, Documents, Material Objects & Exhibits Not Relied Upon By Investigating Officer: Supreme Court

Case Title : Manoj & Others versus State of Madhya Pradesh

Citation : 2022 LiveLaw (SC) 510

Indian Penal Code, 1860 - Section 302 IPC - Death Penalty - Practical guidelines issued to collect mitigating circumstances of the accused at the trial stage-the trial court must elicit information from the accused and the state -The state, must - for an offence carrying capital punishment - at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused (Paras 213 to 217)

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