Rarest Of Rare Doctrine Requires Death Sentence Be Imposed Only If There Is No Possibility Of Reformation : Supreme Court

The Supreme Court, on Tuesday, commuted the death sentence awarded for kidnapping and murder of a 7 year old child to life imprisonment for not less than twenty years without remission of sentence.

A Bench comprising CJI DY Chandrachud, Justice Hima Kohli and Justice PS Narasimha observed that though the crime was grave and unpardonable, ‘the ‘rarest of rare’ doctrine requires that the death sentence not be imposed only by taking into account the grave nature of crime but only if there is no possibility of reformation in a criminal’.

Prosecution’s case

Sundar was accused of kidnapping a child on their way from school. As the child went missing, his mother registered a complaint at the local police station. On the same day and again the day after she received ransom calls. Eventually Sundar and a co-accused were arrested. Sundar made confessional statements on the basis of which the child’s body was recovered. The Trial Court convicted Sundar for offences punishable under Section 364A, 302 and 201 of the Indian Penal Code. He was sentenced to death. The conviction and sentence was confirmed by the High Court and subsequently by the Apex Court. A petition was filed seeking review of the judgment of the Apex Court, which was dismissed in chambers. The petition was sought to be reopened in terms of the judgment in Mohd. Arif v. Registrar, Supreme Court of India, wherein the Apex Court had held that review petition arising from conviction and imposition of death sentence cannot be disposed of by circular, but ought to be heard in open court. Accordingly, the present case was re-opened and re-heard.

Analysis by the Supreme Court

Conviction

The Court noted that the scope of review is quite narrow and in case of criminal proceedings it cannot be exercised except on the ground of error apparent on the face of record. It observed that the grounds raised by the petitioner (Sundar) have already been dealt with by all the Courts. Moreover, the case of the prosecution is founded on consistent interlinked evidence. One of the contentions raised by the petitioner was that the CDRs which were adduced as evidence cannot be relied upon as they were not accompanied by Section 65B certificate. The Court referred to its judgment in State v. Navjot Sandhu wherein it was held that Section 65B was only one of the provisions through which secondary evidence by way of electronic record could be admitted and that there was no bar on admitting evidence through other provisions. However, Navjot Sandhu was overruled by Anvar PV v. P.K. Basheer wherein the Court noted that for admitting any electronic evidence by way of secondary evidence, such as CDRs, the requirements of Section 65B would necessarily need to be satisfied. It was noted that Anvar PV was decided in 2014, whereas even the review petition in the present case was decided prior to that. Considering that the present case is one of death sentence, the Court thought it fit to consider the review petition without relying on the electronic evidence which was filed without the requisite certificate. But, it observed that the electronic evidence was merely corroborative in nature. The Court upheld the conviction as no reasonable doubt in the prosecution’s case could be raised by Sundar.

Sentence

The Court noted that in the present matter the Trial Court did not provide a meaningful and effective hearing on sentencing. Neither did it conduct a separate hearing nor consider any mitigating circumstances. The High Court and the Supreme Court in appeal took into account the crime test but not the criminal test. In its order the Supreme Court had even noted - ‘Purposefully killing the sole male child, has grave repercussions for the parents of the deceased’.

It was categorically noted in the present round of proceedings that though the murder of a child is a gruesome act, the gender of the child cannot in itself be an aggravating circumstance.

“In such a circumstance, it does not and should not matter for a constitutional court whether the young child was a male child or a female child. The murder remains equally tragic. Courts should also not indulge in furthering the notion that only a male child furthers family lineage or is able to assist the parents in old age. Such remarks involuntarily further patriarchal value judgements that courts should avoid regardless of the context.”

Referring to a catena of judgments on the importance of considering the aspect of reformation and rehabilitation it was observed that none of the Courts had conclusively stated that Sundar cannot be reformed or rehabilitated.

“The state must equally place all material and circumstances on the record bearing on the probability of reform. Many such materials and aspects are within the knowledge of the state which has had custody of the accused both before and after the conviction. Moreover, the court cannot be an indifferent by-stander in the process. The process and powers of the court may be utilised to ensure that such material is made available to it to form a just sentencing decision bearing on the probability of reform.”

The mitigating circumstances culled out by the Apex Court

1. Sundar was 23 years old when he committed the crime;
2. No prior antecedents;
3. Satisfactory conduct in prison;
4. Suffering from systemic hypertension;
5. Attempted to acquire training in food catering;
6. Ability to lead gainful life;
7. Possibility of reformation and rehabilitation.

Contempt proceedings

During the course of the hearing, the Apex Court had asked the State to file an affidavit providing certain information. The Sub-Inspector of Police Kammapuram at Cuddalore District, Tamil Nadu filed an affidavit to inform the Court that Sundar’s conduct has been satisfactory. It was pointed out that he was suffering from systemic hypertension and was receiving medical assistance from the prison authorities. Sundar’s diploma qualification in food catering during prison time was also highlighted. However, a document received from the jail authorities in 2018 discloses that Sundar had tried to escape from prison in 2013. Considering the non-disclosure of material facts amounts to misleading the court, it initiated suo moto proceedings against the State. It directed the registry to issue notice to the Inspector of Police, Kammapuram Police Station, Cuddalore District, State of Tamil Nadu to offer an explanation as to why action should not be taken for the filing of the affidavit dated 26 September 2021.

Case details

Sundar @ Sundarrajan v. State by Inspector of Police| 2023 LiveLaw (SC) 217  |Review Petition (Crl) Nos. 159-160 of 2013 in Criminal Appeal Nos. 300-301 of 2011| 21st March, 2023| CJI DY Chandrachud, Justice Hima Kohli and Justice PS Narasimha

Death Penalty- Supreme Court commutes death sentence for kidnapping and murder of a 7 year old child to life imprisonment for not less than twenty years without remission of sentence-the ‘rarest of rare’ doctrine requires that the death sentence not be imposed only by taking into account the grave nature of crime but only if there is no possibility of reformation in a criminal’ - Para 89

Death Penalty- Mitigating circumstances- The state must equally place all material and circumstances on the record bearing on the probability of reform. Many such materials and aspects are within the knowledge of the state which has had custody of the accused both before and after the conviction. Moreover, the court cannot be an indifferent by-stander in the process. The process and powers of the court may be utilised to ensure that such material is made available to it to form a just sentencing decision bearing on the probability of reform - Para 79

Courts should avoid patriarchal statements in judgments-it does not and should not matter for a constitutional court whether the young child was a male child or a female child. The murder remains equally tragic. Courts should also not indulge in furthering the notion that only a male child furthers family lineage or is able to assist the parents in old age. Such remarks involuntarily further patriarchal value judgements that courts should avoid regardless of the context - Para 75