Undertrials Unable To Effectively Defend Themselves Due To Poor Socio-Economic Status, Leads To Sole Focus On Gravity Of Offence: Calcutta HC Reverses Death Sentence

The Calcutta High Court has recently reversed a death sentence awarded to a man who was accused of brutally murdering a home-maker and her 13-year-old daughter with a sharp and heavy weapon.A division bench of Justices Soumen Sen and Partha Sarathi Sen were adjudicating upon a death reference case wherein the trial court had handed a death sentence to Padam Subba (accused) who was a domestic help in the home of the mother-daughter duo whom he allegedly murdered. The Court stated that while the charge of murdering the mother had been proved against the accused, the charge of murdering the daughter had not been conclusively proven.Two separate but concurring opinions were delivered by the judges. To prevent a 'miscarriage of justice' the court altered the accused sentence to 21 years for the charge of murder under Section 302 IPC. Justice Soumen Sen in his separate opinion, held:In India having regard to the social and economic condition and the frightful expense to engage an accomplished, competent and skilled advocate the undertrials by and large are unable to defend effectively at the trial notwithstanding avowed object of free legal access to undertrials under the Legal Services Act. It cannot be doubted that due to ineffective legal representation on behalf of the accused at the trial, at the sentencing stage, mitigating factors not being brought on record and a singular focus on the gravity of the offence would have more than often result in harsh sentencing.While passing the order of sentence learned trial judge has made no venture to make such enquiry as mandated by the Supreme Court not only with regard to the possibility of reformation and rehabilitation of the convict but also with regard to the presence of any criminal antecedents, socio-economic background of the convict as well as the conduct of the convict while he was in judicial custody. It further appears to me that the trial judge was practically persuaded by the gruesome nature of the offence...trial judge has miserably failed to consider the parameters as have been made mandatorily to be followed by the [Apex] court, Justice Partha Sarathi Sen added. BackgroundIt was stated that an FIR was registered against the accused after villagers saw him coming out of the home of Maya Subba, who was found lying in a pool of blood. Upon being questioned, the accused did not respond. It is stated that when villagers came to Subba's home, they also found her daughter with bleeding injuries and lying dead, while Padam Subba, the accused, could not be traced.It was observed that the trial judge awarded the death sentence to the accused since he did not find any mitigating circumstances to commute the sentence to life imprisonment or some other punishment.Counsel for the District Legal Services Committee argued that the FIR and evidence of eyewitnesses showed that the case of the prosecution was inconsistent and contradictory since there were variations in the statements narrated in the FIR and testimony of witnesses who claimed that they had seen the accused committing murder and leaving the house of Maya after the murders.It was submitted that if there had been a large hue and cry, the neighbours living downstairs would have been the first ones to be altered whereas, that was not the case and those living further away came to the house first.It was argued that there was also no evidence that this was a double murder since the murder of the daughter was not conclusively proven. Counsel further argued that there were further inconsistencies regarding the weapon recovered from the scene and alleged to have been used in the offence.It was stated that the trial Judge went overboard at the time of hearing on the point of sentence to hold that alleged murder by the accused/appellant was pre-planned and cold-blooded. It did not consider the possibility of reformation of the death row convict/appellant and neither there is any material or evidence on record to prove that the appellant/death row convict is not prone to reformation and proceeded on whims to award the death sentence which is disproportionately harsh and contrary to the settled principles of law laid down by the Supreme Court, counsel stated.Counsel for the State sought to uphold the death penalty citing the brutality of the offence against the helpless lady and her daughter. It was stated that such a crime being against a woman and her daughter of tender age would fall in the rarest of rare category.Court's findingsUpon perusing all the witness statements and the arguments made, the Court observed that when the accused was informed of the incriminating circumstances against him, he failed to offer any explanation, which was complemented by the fact that there was ocular evidence suggesting and implicating him in the commission of the offence. Court stated that although the present penal law permits the death penalty it has to be awarded in the rarest of the rare cases without the court being left...

Undertrials Unable To Effectively Defend Themselves Due To Poor Socio-Economic Status, Leads To Sole Focus On Gravity Of Offence: Calcutta HC Reverses Death Sentence

Srinjoy Das