Even while remarking that if a list of all heinous crimes committed in the history of mankind was to be prepared, the incident at hand would rate amongst the top hundred, the Rajasthan High Court on Thursday commuted the capital punishment awarded to five convicts in a ten years old murder case.
The division bench of Justice Sandeep Mehta and Justice Vinit Kumar Mathur said,
"…more than 10 years have passed by since the crime was committed. Thus, we feel that indulging in an exercise of evaluating the mitigating and aggravating circumstances at this extremely delayed stage is not called for. Hence, we have to say albeit with a heavy heart that the death penalty imposed upon the accused by the trial court cannot be confirmed."
The court was jointly adjudicating upon a reference for confirmation of death sentence forwarded by the Additional Sessions Judge, Pali, who had convicted and sentenced the accused Shahabuddin, Shakoor Khan, Kalu Khan, Usman Khan and Rahim Bux to capital punishment and other terms of imprisonment under Sections 147-149, 302 of IPC and Sections 4 and 25 of the Arms Act, and an appeal against the said sentence, preferred by the Appellant-accused.
It was alleged by the Appellants that the Sessions Judge had not provided them a proper hearing before sentencing and that he heard the defence on the question of sentence on the very day the judgment of conviction was pronounced. Moreover, it was contended that the order of conviction was passed 7 years later and meanwhile, the accused had a significant window of reforming themselves and had actually been reformed. Thus, the trial court ought to have called the psychiatrist's report from jail regarding mental state of the accused.
The bench said that the trial court ought to have taken into account the law laid down by the Apex Court in Mannan v. State of Bihar, AIR 2019 SC 2934 and Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, while passing the impugned order, and it ought to have applied its mind as to the mitigating and aggravating circumstances of the case.
In Mannan v. State of Bihar, the Apex Court held that,
"Imposition of death sentence on the same day after pronouncement of the judgment and order of conviction may not, in itself, vitiate the sentence, provided the convict is given a meaningful and effective hearing on the question of sentence Under Section 235(2) Code of Criminal Procedure with opportunity to bring on record mitigating factors."
In S. K. Khade v. State of Maharashtra, the Apex Court had thrashed out in detail, the entire concept of death penalty, tracing the road from the regime of mitigating and aggravating circumstances set out in Bachan Singh v. State Of Punjab, (1980) 2 SCC 684, till Amit v. State of Uttar Pradesh, (2012) 4 SCC 107, when the courts in appeal were seen commuting death sentences into life terms.
"…following the criterion expounded by the Supreme Court in Shankar Kisanrao Khade's case is imperative while considering the reference for confirmation of death penalty. As per the above judgment, reports regarding the conduct of the accused have to be called for from the prison and the Social Welfare Department. Mitigating and aggravating circumstances have to be evaluated and only then, can the court proceed to award the extreme death penalty to the accused, if the aggravating circumstances outweigh the mitigating circumstances. In absence of such an exercise being conducted, a death penalty cannot be awarded even if the offence falls within the rarest of rare category," the bench said.
Remarking that it would be futile for the high court to adopt such an exercise ten years later, the bench said,
"True it is that we could have undertaken this exercise even at this stage, but by now much water has flown inasmuch as more than 10 years have passed by since the crime was committed. Thus, we feel that indulging in an exercise of evaluating the mitigating and aggravating circumstances at this extremely delayed stage is not called for. Hence, we have to say albeit with a heavy heart that the death penalty imposed upon the accused by the trial court cannot be confirmed."
The court expressed its anguish over the manner in which the crime had been perpetrated. Allegedly, the Appellant-accused had carried dangerous weapons and acid with them, with which they launched a brutal inhuman assault on the family members of the informant, owing to a property dispute. After being belabored in this fashion, when the victims pleaded for water, the Appellants splayed and poured acid down their throats.
"Having been belabored in this fashion, the victims pleaded for water, but the barbaric acts of the accused persons crossed all limits when they splayed and poured acid down the throats of the hapless victims, who were writhing in throes of pain and were crying out for water. Hence it can be safely concluded beyond all manner of doubt that the accused persons…had formed an unlawful assembly with the sole objective of eliminating the deceased persons so as to put an end to the property dispute. As the concept of vicarious liability fully applies to the case, individual role of the particular accused need not be specified," the court said.
The arguments raised by the Appellants that the star prosecution witness was a created witness; the discoveries made from the crime scene were planted; and that the investigation was conducted in a casual and biased manner; etc., were not entertained by the court.
In fact, on assessing the material placed on record in detail, the court concluded that the evidence of the witnesses was trustworthy and reliable and conclusively established the guilt of the accused Appellants for the "gruesome murder of the four hapless victims".
It also said with regards the allegation that the investigation was not conducted in a fair manner that, "trivial flaws in the investigation would not adversely affect the worth of the eye-witnesses, whose evidence, we have found to be worth credence and establishing the guilt of the accused beyond all manner of doubt."
Expressing its helplessness as to confirming the death sentence, the court found it a fit case to impose life term with no provision for parole. It said,
"…we feel that the perpetrators of such a ghastly offence cannot be permitted to be set at liberty by adverting to the provisions of the parole or by shortening of the life sentence at any point of time during their natural life span."
The court also directed that the victims' families will be granted maximum possible compensation under the Rajasthan Victim Compensation Scheme at the rates prevailing today.
The Petitioners were represented by Senior Advocate Mahesh Bora, assisted by Advocates Nishant Bora and Arpit Mehta and the Respondent State by G.A.-cum-A.A.G., Farzand Ali and PP, Anil Joshi.
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