Supreme Court Death Penalty Digest 2023

The year was significant for death penalty jurisprudence in India. Most notably, while commuting the death sentence in a child kidnapping and murder case to a fixed-term sentence, the Supreme Court observed that the death penalty would only be warranted under the 'rarest of rare' doctrine in cases devoid of any possibility of the criminal's reformation.

Other pivotal developments relating to the death penalty include the hearing of a public interest litigation (PIL) petition seeking to abolish the present practice of executing a death row convict by hanging which involves “prolonged pain and suffering” and to replace it with less painful alternatives like intravenous lethal injection, shooting, electrocution or gas chamber in which a convict could die in a matter of minutes. In May this year, the central government informed the top court that it was considering forming an expert committee to determine the proportionality of executing a death row convict by hanging. Project 39A of the National Law University Delhi has also been allowed to intervene in this PIL.

In a notable judgment, the top court ruled that in cases warranting the death penalty, the prosecution must produce before the trial court all material relevant for assessing the mitigating circumstances favouring the accused. It was also clarified that this exercise must be carried out in cases where the accused is eventually not sentenced to death.

In November, the Supreme Court agreed to hear a batch of petitions pertaining to whether same-day sentencing could be permissible in the cases of capital punishment or death penalty in January 2024. Taking into account the lack of a uniform framework, the Supreme Court had initiated a suo motu case and referred it to a five-judge bench.

Below is a summary of the death penalty cases LiveLaw reported in 2023:

Person Convicted For Rape-Murder Found To Be Juvenile: Supreme Court Sets Aside Death Sentence, Sustains Conviction

Karan @ Fatiya v. State of Madhya Pradesh [2023 LiveLaw (SC) 159]

In March last year, a bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol overturned the death sentence imposed on a convict found guilty of the rape and murder of a minor girl, after discovering that he was a juvenile at the time of the offence.

The convict had appealed to the Supreme Court after the Madhya Pradesh High Court upheld the death penalty initially awarded by the trial court. A crucial twist emerged during the appeal process when the convict claimed juvenility, prompting the Supreme Court to instruct the trial court to investigate his age when he committed the crime.

The trial court's findings revealed that the convict's date of birth was conclusively established as July 25, 2002. This revelation meant that on the date of the crime, December 15, 2017, he was only 15 years old. Considering the Juvenile Justice (Care and Protection) Act, 2015, which stipulates a maximum sentence of three years' imprisonment for juveniles, the Supreme Court annulled the death penalty and ordered the immediate release of the convict, who had already served over five years in prison.

Despite setting aside the death penalty, the Supreme Court stressed that the conviction itself, as determined by a sessions court, remains legally sound. It observed that the Juvenile Justice Act's provisions apply primarily to the sentencing aspect rather than the validity of the conviction. The absence of an inquiry by the Juvenile Justice Board (JJB) would not vitiate the trial court's jurisdiction and nullify the entire proceedings, it held. In its judgment, the court observed –

“The conviction which was recorded cannot be held to be vitiated in law merely because the inquiry was not conducted by the board. It is only the question of sentence for which the provisions of the 2015 Act would be attracted and any sentence in excess of what is permissible under the 2015 Act will have to be accordingly amended as per the provisions of the 2015 Act. Otherwise, an accused who has committed a heinous offence and who did not claim juvenility before the trial court would be allowed to go scot-free. This is also not the object and intention provided in the 2015 Act.”

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

'Courts Should Not Further The Notion That Only Male Child Will Assist Parents In Old Age; Avoid Patriarchal Remarks': Supreme Court

Sundar @ Sundarrajan v. State by Inspector of Police [2023 LiveLaw (SC) 217]

In the same month, a bench of Chief Justice DY Chandrachud and Justices Hima Kohli and PS Narasimha commuted the death sentence in a child kidnapping and murder case to life imprisonment for a minimum of twenty years without remission of sentence. The significance of this decision is the Supreme Court's observation that the death penalty would only be warranted under the 'rarest of rare' doctrine in cases devoid of any possibility of the criminal's reformation.

The case revolved around Sundar, accused of kidnapping a child on his way home from school. Following the child's disappearance, the mother reported the incident, leading to ransom calls. Subsequently, Sundar and a co-accused were arrested, with confessional statements aiding in the recovery of the child's body. Sundar was sentenced to death by a trial court, a decision upheld by the high court and the Supreme Court.

A review petition was dismissed in chambers, but the case was re-opened and heard afresh in terms of the top court's ruling in Mohd Arif v. Registrar, Supreme Court that a review petition arising from a death sentence cannot be disposed of by circular but must be heard in open court. While allowing the review and setting aside Sundar's death sentence, the bench noted 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 the crime but only if there is no possibility of reformation in a criminal”.

The Supreme Court criticised the trial court's failure to provide a meaningful hearing on sentencing, omitting consideration of mitigating circumstances. The appellate courts had also only taken into account the crime test, and not the criminal test, the bench noted. Specifically, an observation made by the Supreme Court while confirming the death sentence that “purposefully killing the sole male child has grave repercussions for the parents of the deceased” came under the scanner.

Disapproving of such an observation, the review bench emphasised that the gender of the child should not be an aggravating circumstance. In its judgment, the bench remarked –

“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.”

Mitigating Circumstances

The mitigating circumstances considered by the Supreme Court while allowing the review included Sundar's age at the time of the crime (23), lack of prior antecedents, satisfactory conduct in prison, systemic hypertension, attempts to acquire training in food catering, and the potential for reformation and rehabilitation.

Supreme Court Releases Death Row Prisoner After 28 Years On Finding Him To Be A Juvenile At The Time Of Offence

Narayan Chetanram Chaudhary v. State of Maharashtra [2023 LiveLaw (SC) 244]

The Supreme Court in March also ordered the release of a convict on death row for over 28 years after finding that despite being tried as an adult, he was a juvenile at the time of the offence.

The convict, along with two accomplices, was convicted for the murder of five women and two children in Pune. He was initially sentenced to death in 1998, which was upheld by the high court and the Supreme Court. After his review petition was dismissed, he filed an application under the Juvenile Justice (Care and Protection of Children) Act, 2015, asserting he was a minor when the crime occurred. The Supreme Court, in 2019, directed an inquiry by a Pune sessions judge, leading to a report confirming his juvenility.

The State questioned this inquiry report, alleging that it was prepared in a flawed manner without following the procedure laid down in the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. The court, however, ruled that the fact-finding process did not require the formalities of a summons trial, highlighting the absence of any such prescription in Section 9(2) of the 2015 Act.

Concluding that the convict had successfully proven his juvenility, the court set aside his death sentence in accordance with the Juvenile Justice Act, which excludes juveniles from the ambit of death penalty, and mandates a maximum punishment of three years for such children in conflict with law.

Chhawla Rape-Murder Case : Supreme Court Affirms Acquittal Of Death Row Convicts; Dismisses Review Petitions

The State of Delhi v. Rahul and other connected matters

In another notable development from March, a bench of Chief Justice DY Chandrachud, and Justice S Ravindra Bhat and Bela Trivedi rejected the review petitions challenging the acquittal of three individuals who were initially sentenced to death for the gang-rape and murder of a 19-year-old girl in Delhi's Chhawla area in 2012.

In November 2022, the Supreme Court had acquitted the three accused, overturning the Delhi High Court's death sentence. The individuals – Rahul, Ravi, and Vinod – were charged with abducting and brutally assaulting the victim. Despite their earlier convictions, a Supreme Court bench, led by former Chief Justice UU Lalit acquitted the convicts, noting 'glaring lapses' in the trial and emphasising the need for decisions based strictly on merits and in accordance with the law, free from external moral pressures.

Last year, the top court dismissed the review pleas filed by Delhi police and various individuals and non-governmental organisations (NGO), citing a lack of factual or legal errors in the original judgment. The Delhi police, in its review petition, had highlighted the involvement of one accused, Vinod, in a subsequent murder case after his release from jail. However, the Supreme Court maintained that such events unrelated to the present case were not grounds for review. The court also deemed the review petitions filed by non-parties to the trial proceedings, including individuals and NGOs, as not maintainable.

Decide Mercy Petitions Against Death Sentence At The Earliest So That Convicts Won't Take Advantage Of Delay: Supreme Court To All Authorities

State of Maharashtra v. Renuka Shinde [2023 LiveLaw (SC) 305]

In April, a bench of Justices MR Shah and CT Ravikumar, while partly allowing an appeal against a high court judgment commuting death sentences to life imprisonment on grounds of inordinate delay in deciding mercy petitions, called upon all state governments to expedite the decision-making process for mercy petitions in death penalty cases.

The high court, in its decision, had pointed to a delay of nearly 7 years and 10 months in deciding mercy petitions as a basis for commuting the death sentences. Noting past instances where death penalties were commuted due to prolonged delays, the Supreme Court observed that both the accused and the victim deserve a timely resolution of such matters. In its order, it noted, “The gravity of the offence can be a relevant consideration while commuting the death sentence to life imprisonment, however, inordinate delay in disposal of the mercy petitions can also be said to be a relevant consideration.”

However, the Supreme Court also highlighted the gravity and seriousness of the crime that had resulted in the death of nine people. Stressing the importance of a balanced approach and considering the seriousness of the offence alongside the need for timely disposal of mercy petitions in death penalty cases, the bench concluded that the high court ought to have passed an order commuting the death sentences to life imprisonment without any possibility of remission and modified the order accordingly.

Supreme Court Commutes Death Sentence Of Man Who Murdered His Sister & Her Lover From Another Caste; Takes Note Of 'Social Pressure'

Digambar v. The State of Maharashtra [2023 LiveLaw (SC) 361]

A bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol in April commuted the death penalty of a murder convict to life imprisonment, stating that the crime did not meet the criteria for the 'rarest of rare' category, and considering the offender's lack of criminal antecedent.

The convict, a 25-year-old man, had confessed to killing his sister and her lover from a different caste in 2017. His sister, married just twelve days earlier, left her husband to be with her lover. Upon discovering this, the convict confronted and murdered them. He was sentenced to death by a trial court, which was later confirmed by the Bombay High Court.

Mitigating Circumstances

The Supreme Court upheld the conviction under Section 302 of the Indian Penal Code, 1860 but considered mitigating circumstances to commute the sentence to life imprisonment. It noted that the appellant's actions did not exhibit extreme brutality, and he displayed good behaviour, helpfulness, and leadership qualities according to reports from a probation officer and the prison superintendent. While allowing the convict's appeal and setting aside his death sentence, the court also highlighted the absence of a criminal mindset, the young age of the appellant at the time of the crime (25), and the probation officer's report that he gave in to social pressure and sudden provocation.

Supreme Court Upholds Acquittal Of A Death Row Convict By High Court

State of Madhya Pradesh v. Phoolchand Rathore [2023 LiveLaw (SC) 408]

A bench of Justices Sanjay Kishan Kaul, Manoj Misra, and Aravind Kumar upheld the Madhya Pradesh High Court's decision to acquit an accused sentenced to death for the alleged murder of his wife. The apex court emphasised the prosecution's failure to establish circumstances, including motive, disclosure, recovery, and extra-judicial confession, beyond reasonable doubt.

The accused was aggrieved by his wife's decision to keep her jewellery with her sister. The altercation escalated in February 2010, leading to the accused allegedly threatening to kill his wife and burn down the house. Subsequently, the deceased was found seriously injured between railway tracks, and she eventually succumbed to her injuries on the way to the hospital. While a trial court relied on the testimony of the deceased's daughter to convict the accused, the high court in its 2015 judgment overturned the conviction and death penalty, raising doubts over the evidence. The Supreme Court, concurring with the high court, emphasised the importance of proving circumstances beyond reasonable doubt. The bench observed in its judgment –

“Considering that the place of occurrence was an open place and the other circumstances (i.e. motive, disclosure, recovery and extra judicial confession) were not proved beyond reasonable doubt, shifting the burden on the accused to explain the circumstances in which the deceased sustained injuries, or to demonstrate that he parted company of the deceased, would not be justified in the facts of the case.”

Supreme Court Declines To Commute Death Penalty Of Balwant Singh Rajoana, Allows Centre To Decide Mercy Petition 'When Necessary'

Balwant Singh v. Union of India [2023 LiveLaw (SC) 391]

In a significant development, a bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol in May last year declined to commute the death sentence of Balwant Singh Rajoana, a Babbar Khalsa terrorist convicted in the 1995 assassination of Punjab's then-chief minister, Beant Singh. Rejecting his writ petition assailing the prolonged pendency of a mercy petition, the court stated that the Ministry of Home Affairs' decision to defer its decision was valid.

Rajoana was implicated in the suicide bombing that claimed 17 lives. His lawyer argued for commutation, citing delays in deciding the mercy petition. The chief minister's assassination, allegedly a response to Operation Bluestar and the 1984 anti-Sikh pogrom, involved Rajoana facilitating the suicide bomber. Despite having spent 27 years in custody, the Babbar Khalsa terrorist refused legal representation, displaying open disdain for the Indian judicial system.

In its judgment, the court noted that the petitioner himself had never submitted any mercy petition himself and the clemency plea had been filed by Shiromani Gurdwara Parbandhak Committee (SGPC) in 2012. It also noted the government's decision to keep the commutation proposal pending till the final disposal of the appeals filed by a co-accused as well as the Central Bureau of Investigation, which was said to have a bearing on the current proposal. Stressing that the executive's discretion in such sensitive matters should be respected, the court observed –

“It would not be within the domain of this court to delve upon the decision of the competent authority to defer taking of any decision at present. It is within the domain of the executive to take a call on such sensitive issues. As such this court does not deem it appropriate to issue any further directions. The stand of the Ministry of Home Affairs to defer the decision on the mercy petition of the petitioner is also a decision for the reasons given thereunder. It actually amounts to a decision declining to grant the same for the present. It is, however, directed that the competent authority, in due course of time, would again as and when it is deemed necessary, may deal with the Mercy Petition, and take a further decision.”

'Numerous Lapses In Investigation': Supreme Court Frees Man Awarded Death Penalty In Case For Rape & Murder Of 6 Year Old Girl

Section 53A CrPC | Samples Collected From Accused Must Be Sent To Laboratory As Soon As Possible : Supreme Court

Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra [2023 LiveLaw (SC) 461]

A bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol in May overturned the death sentence and life imprisonment of a convict charged with raping and murdering a six-year-old girl, citing substantial gaps in the chain of circumstances and irregularities in the investigation as grounds for the decision.

The accused faced charges of sexually assaulting and causing the death of the minor, with allegations that he tried to conceal evidence by throwing the body into a drain. The trial court, in 2014, had convicted the appellant, sentencing him to death. This was upheld by the high court in 2015.

The Supreme Court, however, flagged critical issues, including the non-recording of the accused's disclosure statement in a language he understood, reliance on DNA evidence as the sole basis, and the failure to establish conclusive links to the appellant. It noted lapses in the investigation, such as changes in investigating officers, unexplained delays in sample analysis, and discrepancies in the house search.

Notably, the court observed that the samples when collected shall be sent to the laboratory without any delay so that the possibility of contamination and the concomitant prospect of diminishment in value can be ruled out. It further noted that there shall be compliance of Section 53A of the Code of Criminal Procedure, 1973 and the 'chain of custody' of samples collected shall be maintained.

While the crime against the child was undeniable, the court ruled that the prosecution had failed to conclusively link the accused to the crime, emphasising the lack of airtight evidence. Criticising the investigation for glaring lapses, the bench ultimately set aside the conviction and ordered the release of the appellant.

Expeditious Trial Of Terror Attack Cases Necessary: Supreme Court Says Delay In 1996 Lajpat Nagar Blast Case Compromised National Security

Mohd Naushad v. State and connected matters [2023 LiveLaw (SC) 508]

In July, a bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol handed out life imprisonment without remission to four militants associated with the Jammu and Kashmir Islamic Front (JKIF) for their involvement in the 1996 Lajpat Nagar bomb blast. The court not only emphasised the significance of swift trials but also considered the time elapsed since the attack and the date of conviction as mitigating factors against imposing the death penalty, even though the crime fell within the 'rarest of the rare' category.

In this case, the Supreme Court upheld the conviction of two individuals and set aside the Delhi High Court's decision to discharge two others due to insufficient evidence. The bench, while acknowledging the seriousness of the bomb blast that claimed 13 lives and injured 38 people, criticised the more than a decade-long delay in concluding the trial. Stressing the need for expeditious trials particularly in cases related to national security, the bench observed, “The record reveals it is only on the prodding on the part of the judiciary that the trial could be completed after more than a decade. The delay, be it for whatever reason, attributable to the judge in charge or the prosecution, has certainly compromised national interest…Expeditious trial of such cases is the need of the hour, especially when it concerns national security and the common man.”

Despite the case meeting the criteria for the 'rarest of rare' category, the Supreme Court refused to reinstate the death sentences granted by the trial court. Instead, the bench imposed whole-life sentences, citing mitigating circumstances against the death penalty. “The incident took place on May 21, 1996, i.e., approximately 27 years ago, the trial court awarded the sentence of death on April 22, 2010, i.e., more than 13 years ago…All [are] mitigating circumstances in not awarding the sentence of death even though it falls within the category of rarest of rare cases,” the bench noted in its judgment.

Supreme Court Acquits Convict On Death Row; Orders Immediate Release

'Great Caution Needed' : Supreme Court Lists Out Factors To Be Considered While Relying On Dying Declarations

Irfan @ Naka v. State of Uttar Pradesh [2023 LiveLaw (SC) 698]

A bench of Justices BR Gavai, PS Narasimha, and Prashant Kumar in August acquitted a death row prisoner convicted for the murder of his two brothers and young son. While doing so, the court observed that 'great caution' must be exercised while placing reliance on dying declarations even as the law attaches a presumption of truthfulness to such statements.

The convict was sentenced to death by a trial court, which was later confirmed by the Allahabad High Court in 2018. The allegation against him was that motivated by familial discord, he set his brothers and son on fire, locking them inside a room. Despite rescue efforts by family members and neighbours, the victims succumbed to their injuries. The prosecution's case relied on dying declarations recorded by the police, and these declarations formed the crux of the sessions court's guilty verdict.

In this case, the Supreme Court sought reports from the probation officer and jail administration, mandated a psychological evaluation, and enlisted an associate of Project 39A of Delhi's National Law University for an independent report. Despite the concurrent findings of the lower courts, the Supreme Court was not persuaded that a conviction could be sustained based on the dying declarations alone. On dying declarations and their credibility, the court observed –

“It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration. In such cases, the court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion.”

Ultimately, while acquitting the death row prisoner and ordering his immediate release from jail, the bench reproduced an illustrative list of factors that would help determine the weight of a dying declaration, although not its admissibility.

Judge Is Not A Mere Recording Machine; Must Actively Search For Truth In Trial : Supreme Court Sends Back Death Penalty Matter To HC

Munna Pandey v. State of Bihar [2023 LiveLaw (SC) 744]

In September, a bench of Justices BR Gavai, JB Pardiwala, and Prashant Kumar Mishra overturned the Patna High Court's decision affirming the death sentence of a convict charged with the rape and murder of a 10-year-old girl and remitted the matter back to the high court for deciding the death reference afresh.

A judge must not be a mere spectator but an active participant, intervening to elicit relevant information for a fair and impartial trial, the court said. It also emphasised the duty to prevent the truth from becoming a casualty in the quest for justice.

Deeming a fair trial as fundamental to Article 21 of the Indian Constitution, the court further stressed that without it, public confidence in the judiciary's fairness would be jeopardized. The judgment articulated that a fair trial necessitates an impartial judge, competent defence counsel, and a fair opportunity for both the prosecution and the accused to present their cases. The Supreme Court's verdict in this case not only overturned a death sentence but also delivered a robust endorsement of the foundational importance of a fair trial, emphasising the active role judges must play in ensuring justice prevails.

Supreme Court Acquits Two Death Row Convicts, Perplexed At Trial Court & HC Awarding Capital Punishment Despite Loopholes In Evidence

Rajesh v. State of Madhya Pradesh [2023 LiveLaw (SC) 814]

A bench of Justices BR Gavai, JB Pardiwala, and Sanjay Kumar in September acquitted three individuals in a murder and kidnapping case, overturning the death sentence imposed on two of them by the trial court and affirmed by the high court. Expressing concern over the 'yawning gaps' and 'infirmities' in the prosecution, the court questioned the imposition of severe penalties despite weak links in the case. Insisting that the case did not meet the criteria for being considered a part of the 'rarest of rare' category, the bench allowed the appeals.

The case involved the brutal killing of a teenager in 2013. The accused, Om Prakash Yadav, Raja Yadav, and Rakesh Yadav, were convicted by a sessions court in Jabalpur, with two receiving death sentences. The Madhya Pradesh High Court affirmed the convictions, prompting the appeal to the Supreme Court. The apex court, noting the absence of eyewitnesses and reliance on circumstantial evidence, stressed the need for an unbroken chain of events to establish guilt.

The court also expressed its dismay over the manner in which the investigation was conducted, underscoring the need for a consistent and dependable investigation procedure. On the non-fulfilment of the criteria for being considered a 'rarest of rare cases' warranting such severe punishment, the bench observed –

“No valid and acceptable reasons were put forth as to why this case qualified as the 'rarest of rare cases', warranting such drastic punishment. Per contra, we find that the yawning infirmities and gaps in the chain of circumstantial evidence in this case warrant acquittal of the appellants by giving them the benefit of doubt. The degree of proof required to hold them guilty beyond reasonable doubt, on the strength of circumstantial evidence, is clearly not established.”

'Past Conduct Not Always A Factor When Imposing Death Penalty': Supreme Court Commutes Death Sentence

Madan v. State of Uttar Pradesh [2023 LiveLaw (SC) 982]

In November, the Supreme Court overturned the death sentence of an individual convicted for firing and killing multiple people in Muzaffarnagar, Uttar Pradesh, due to suspected political enmity. Despite categorising the crime as falling within the 'rarest of rare' category, the court allowed the convict's appeal, highlighting the potential for his reformation.

The case, stemming from a 2003 incident in Muzaffarnagar, involved a politically motivated attack resulting in several fatalities. While the bench dismissed an appeal by one of the convicts against the high court commuting his death sentence to life imprisonment, the death penalty imposed on another accused and appellant was set aside and substituted with a prison sentence of 20 years.

While acknowledging the shocking nature of the crime, court questioned the appropriateness of the death penalty, in view of the possibility of reformation for the convicts. Applying both the 'crime test' and 'criminal test', the court found no material proving the convict's irredeemability.

Moreover, the convict's recidivism had factored in with the confirming court since he had earlier been convicted in another murder case, but the top court held that past conduct does not necessarily have to be taken into consideration while imposing the death penalty, particularly when the commutation of the sentences of other accused persons, but not his, would lead to an anomalous situation.