Death Sentence Only When The Alternative Option Is Unquestionably Foreclosed: SC [Read Judgment]

The bench comprising Justice SA Bobde, Justice L. Nageswara Rao and Justice R. Subhash Reddy observed that, even though the murder involves exceptional depravity and the manner of commission of the crime is extremely brutal, a death sentence can be imposed only when the alternative option is unquestionably foreclosed.

Raju Jagdish Paswan was sentenced to death by the Trial court after it was found that he had raped a nine year old girl and then pushed her into a nearby well. The Doctors had deposed before the Trial court that there was evidence of vaginal as well as anal intercourse and that the cause of death was drowning. The High Court had confirmed the death sentence observing that the accused did not show any compunction, regret or remorse after committing a gruesome and heinous act on a hapless child. The Apex Court, while issuing notice in his appeal, had only agreed to examine the justifiability of the sentence of death.

The apex court bench took note of the following mitigating circumstances to hold that the accused does not deserve the sentence of death and the case does not fall within the rarest of rare cases.

• No evidence that murder was committed in a pre-planned manner.
• Accused was a young man aged 22 years at the time of commission of the offence.
• No evidence produced that the accused has the propensity of committing further crimes, causing a continuing threat to the society.
• No evidence to show that the Appellant cannot be reformed and rehabilitated.

Justice Nageswara Rao, in the judgment, also refers to judgments of Supreme Court of the United States. He observed that though the punishment should be proportionate to the offence, a savage sentence is an anathema to the civilized jurisprudence.

Quoting passages from the books authored by Tom Bingham and Bruce W. Gilchrist, Justice Rao said: "The maintenance of peace, order and security is one of the oldest functions of the civil society. The imposition of penal sanctions on those who have infringed the rules by which a society has bound itself are a matter of legitimate interest to the members of the society. Punishment is the just desert of an offender. The society punishes not because it has the moral right to give offenders what they deserve, but also because punishment will yield social useful consequences: the protection of society by incapacitating criminals, the rehabilitation of past offenders, or the deterrence of potential wrongdoers. The purposes of criminal sentencing have traditionally been said to be retribution, deterrence and rehabilitation. To these there may now perhaps be added: incapacitation (i.e. putting it out of the power of the offender to commit further offences) and the maintenance of public confidence."

While commuting the sentence to life imprisonment, the court added: "The brutal sexual assault by the Appellant on the hapless victim of nine years and the grotesque murder of the girl compels us to hold that the release of the Appellant on completion of 14 years of imprisonment would not be in the interest of the society. Considering the gravity of the offence and the manner in which it was done, we are of the opinion that the Appellant deserves to be incarcerated for a period of 30 years."

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