Dissent By One Judge Not A Bar For Upholding Death Penalty: SC Rejects Review Petition Of Death Convict [Read Judgment]

The Supreme Court has dismissed the review petition filed by Manoharan whose death penalty was upheld it a few months ago.

The Supreme Court (2:1) had, in August 2019, upheld the death sentence awarded to Manoharan involved in gang rape of a ten year old girl and thereafter murdering her and her brother. Justice Rohinton Fali Nariman and Surya Kant had upheld the death penalty and Justice Sanjiv Khanna had expressed his dissent against upholding death sentence.

Dissenting View Not Bar For Upholding Death Penalty

One of the contentions raised by Senior Advocate Siddharth Luthra during the hearing of Review petition was that death ought not to be awarded in case of a single dissent, notwithstanding the opinion of the majority. It was contended that, in a case where one of the Judges did not deem it appropriate to award death penalty, that in itself ought to be a sufficient ground to commute death sentence in Review. 

Justice Surya Kant observed that the said view is unsupported in view of judgments in Devender Pal Singh v. State of NCT of Delhi and also in Krishna Mochi v. State of Bihar.

Further, even sans the aforesaid decisions, we are not inclined to accept such a reasoning for it is contrary to the established jurisprudence of precedents and interpretation of verdicts with multiple opinions. It is settled in law that dissenting opinions have little precedential value and that there is no difference in operation between decisions rendered unanimously or those tendered by majority, albeit with minority dissenting views.

The bench also observed that there can be no hard rule of not awarding death in cases based on circumstantial evidence owing to recent developments in medical science and the possibility of abuse by seasoned criminals.

Mere Young Age Not A Ground For Commutation

The Court observed that 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, it said.

While upholding death penalty, the bench said:

Rather, the present case is essentially one where two accused misused societal trust to hold as captive two innocent school-going children, one of whom was brutally raped and sodomised, and thereupon administered poison and finally, drowned by throwing them into a canal. 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. We are of the view that the present offence(s) of the Petitioner are so grave as to shock the conscience of this Court and of society and would without doubt amount to rarest of the rare.

Change in law during pendency of the case is an apt indicator of societal opinion as legislated by elected representatives

Another contention raised in the review petition was that the Court should not have relied on a recent amendment to the Protection of Children from Sexual Offences (POCSO) Act, 2012 to justify death penalty, as the new law was non-existent on the date of occurrence and hence cannot be applied retrospectively in derogation to Article 20 of the Constitution. In this regard, the bench said:

To uphold the guarantee under Article 21 and to reduce arbitrariness caused by discretion of judges in sentencing, it should be the opinion of the society and not the personal opinion of the judge which should be considered whilst awarding sentence of death. Towards the same, a change in law during pendency of the case is an apt indicator of societal opinion as legislated by elected representatives. It is not the case here that Petitioner has not been convicted of an offence otherwise not punishable with death.

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